A Supreme Court Dissenter Becomes a Big Winner

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I was so struck by the number of important decisions Justice Scalia wrote this term that I asked Justice Ginsburg about his record when I interviewed her this week. (Here’s the news story covering other topics.)

First, consider this: Scalia authored the decision striking down California’s ban on the sale of violent video games to minors and giving video games the kind of First Amendment protection granted books (Brown v. Entertainment Merchants Association). He wrote the decision throwing out the class-action sex discrimination lawsuit against Wal-Mart and setting a new standard for workers nationwide to bring such bias claims (Wal-Mart Stores v. Dukes). He wrote the ruling saying consumers can be bound by an arbitration clause in a cell-phone contract even when state law would permit a class-action claim (AT&T Mobility v. Concepcion). He also authored the decision that former Attorney General John Ashcroft could not be held liable for a post-Sept. 11 policy that led to the arrest of a Muslim U.S. citizen (Ashcroft v. al-Kidd) and the one upholding a Nevada ethics law that also declared voting by legislators not protected speech under the First Amendment (Nevada Commission on Ethics v. Carrigan).

So, I asked Justice Ginsburg whether she was surprised that he had prevailed so much.

She responded, “Is he prevailing more than the chief?” Her tone was sharp and it suggested she didn’t think Scalia was as influential as my question implied. And she was right: Scalia was not in the majority as much as Chief Justice John Roberts, or swing-vote Justice Anthony Kennedy. But Scalia did write opinions for the Court in the most closely watched cases. And the crux of my question had more to do with his history on the bench, which she – as a longtime colleague at odds with him on the law – knows well.

Scalia’s public profile arises from a conservatism that is not usually embraced by a majority (and that Ginsburg has told me she believes will never become the norm), along with a series of hyperbolic dissenting opinions. Think Romer v. Evans. Think Boumediene v. Bush. I also know that he was regarded as someone who could, more than other justices, lose a majority once he started drafting the opinion and expressing his legal rationale. But that has changed in recent years and clearly in the term that just finished up, Chief Justice Roberts had the confidence to assign Scalia several momentous opinions and Scalia held, at least, the requisite five.

When I laid all that out, Ginsburg said, “We’ll see how it is next term.”

A few weeks earlier when I was in Justice Scalia’s chambers, he didn’t want to talk about winning more and, in fact, was focused on the major California prison case, Brown v. Plata, that a few days earlier had not gone his way. The Court, in an opinion by Kennedy joined by Ginsburg and the other liberals, had found the overcrowded prison system unconstitutional and required reduction of about 30,000 inmates. In a dissent from the bench, Scalia declared that the Court was affirming “perhaps the most radical injunction issued by a court in our nation’s history.”

Now that I see that Brown v. Plata was an exception for Scalia this term, I cannot help but recall a conversation I had with him in summer 2009, right after District of Columbia v. Heller, when he wrote the opinion establishing individual gun rights under the Second Amendment. I observed then that he seemed to be in the majority more and getting to write more significant opinions for the Court. He brushed me off. “The wins,” he sighed. “The wins: Damn few.”

At the time, I wrote that Scalia might be at the apex of his influence. Now I’m wondering if he might be in a longer chapter and about to have more impact on the law than I ever would have imagined or that Justice Ginsburg ever would have wanted. Like her, I’ll wait for next term.

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