Jonathan F. Mitchell (Stanford Law School) has posted Remembering the Boss (84 U. Chi. L. Rev. 2291 (2017)) on SSRN. Here is the abstract:
Justice Antonin Scalia was a transformational jurist for many reasons: his skills as a writer and rhetorician, his charisma, and his bold attacks on the conventional interpretive methodologies of his day. Many of his ideas and arguments have brought lasting change in the way courts behave, particularly in the field of statutory construction. Today there is far less judicial reliance on legislative history than there was when Justice Scalia joined the Supreme Court, and fewer facile invocations of “legislative intent.” But it also seems fair to say that Justice Scalia’s impact was less transformative in the field of constitutional law. While text and structure have become paramount in resolving disputed questions of statutory meaning, Obergefell v. Hodges shows that a majority of the Supreme Court still subscribes to the living-constitution philosophy that Justice Scalia so vigorously denounced.
This essay considers why Justice Scalia—who so profoundly changed the way the Supreme Court interprets statutes—was less successful in changing the Court’s approach to constitutional interpretation. And it contends that Justice Scalia’s most powerful critique of modern constitutional interpretation was not his attack on the idea of a living Constitution, but his challenge to the assumption that the judiciary (of all institutions) should hold the prerogative to impose its preferred interpretations of an evolving Constitution on the rest of us.