The unknown achievements of Justice Scalia.

• Author: Calabresi, Steven G.
• Position: Supreme Court Justice Antonin Scalia - Testimonial

The death of Justice Antonin Scalia marks the end of an era in the history of the Supreme Court. One of President Ronald Reagan's greatest gifts to the country he so loved has passed away. The Reagan Supreme Court, which once had four Reagan-appointed Justices, is now passing into history.

A new generation of Americans voting in the 2016 presidential election will have to decide whether to follow the originalism and textualism of Justice Scalia or the left wing policy-maker jurisprudence of Justice Stephen Breyer and the Supreme Court's other liberal Justices. A huge amount is therefore at stake this November.

Many have noted that Justice Scalia was a legal giant who single-handedly restored textualism and originalism in Supreme Court constitutional and statutory interpretation. I will write at length on this subject in a forthcoming book and have mentioned it as well in several tributes to the Justice since his death. But, while it is true that the Justice transformed American legal culture, and while knowing this helps to explain why Justice Scalia was the greatest Justice ever to sit on the Supreme Court, not all of Justice Scalia's triumphs as a Justice were as publically visible as his opinions in Heller and in Morrison v. Olson or as the restoration of textualism and of originalism. As Justice Scalia told me when I was his law clerk in 1987-1988, Justice Scalia's greatest triumphs were often not publically visible at all. For example, he played a key role in persuading the Justices to stop hearing and deciding 150 decisions a year and to aim at only 80 decisions a year instead. Justice Scalia believed that the Supreme Court ought to hear fewer cases and do a better job with them than it had been doing prior to 1986. Justice Scalia's views prevailed and for the last ten years the Supreme Court has on average decided about 80 cases a year. Justice Scalia realized that judicial restraint could often be best accomplished by not hearing a case and by getting his colleagues to do a better job on fewer cases.

Another thing that Justice Scalia often did that was publically invisible but was of vital importance was keeping what lawyers call dicta out of his colleague's opinions. Justice Scalia scrutinized all of the majority, concurring, and dissenting opinions he joined, and he often held out on joining them unless activist language that could cause trouble in the lower federal courts and in future Supreme Court opinions was taken out...