CommentsFor Pragmatic Romanticism in Law and Dispute Resolution: Reflections on Galanter’s Remarkably Realistic Analysis of Why the Have-Nots Come Out Behind

The 1960s was a time of great hope for many Americans seeking to redress historic injustices to make a better world. They were inspired by Warren Court decisions such as Brown v. Board of Education, President Lyndon B. Johnson’s Great Society legislation, and public interest lawyers bringing impact litigation and representing disadvantaged populations. These developments inspired tremendous optimism that law and litigation would be vital instruments of social progress....

After Brown

This chapter traces the U.S. Supreme Court’s mnemonic jurisprudence from Brown v. Board of Education to the present. It shows how, despite occasional instances of redemptive memory—especially during the Warren Court era (1953–1969)—the parenthetical mode of memory continued to predominate. The chapter shows how debates over the legacy of slavery and segregation gradually shifted into debates over the legacy of Brown. Anti-classification readings of Brown have been underwritten by narratives of parenthetical memory, whereas anti-subordination readings of Brown have relied on narratives of redemptive memory. The debates have been most poignant in the context of affirmative action and other race-conscious remedies for de jure or de facto race discrimination. In recent years, the parenthetical mode has once again gained the upper hand.

An Abandoned Jurisprudence

This chapter examines Justice Antonin Scalia’s views on Article III of the U.S. Constitution and the nature of the federal judicial power that it established. One of Scalia’s principal goals was to limit severely the power of the federal courts and to undo many of the decisions of the Warren Court, including their ability to create implied private causes of action, and the chapter argues that in pursuing that goal Scalia departed from originalist views and that the arguments he advanced were themselves self-contradictory. The chapter shows, moreover, that originalist doctrines and historical practices actually contradicted his claims about limits on the federal judicial power. Further, the chapter argues that his views were based not on originalist ideas but on the twentieth-century positivism associated with Erie Railroad v. Tompkins, and that in Sosa v. Alvarez-Machain, he explicitly acknowledged that his positivist ideas were not the ideas of the Founders. The chapter concludes that in this area, Scalia simply abandoned originalism and did so, once again, to achieve his own ideological and political goals

The Nature of American Constitutionalism

This chapter examines the third reason for Justice Antonin Scalia’s enduring historical significance for an understanding of American constitutionalism. The chapter argues that he was a man of his times, who adapted “conservative” politics and values to meet what he saw as the abuses of the Warren Court and twentieth-century liberalism. To counter broad assertions of federal legislative and judicial power, he developed doctrines to limit both of those branches, and to counter liberal attempts to limit presidential power after Watergate, he developed doctrines to expand the power of the executive. The chapter criticizes his embrace of positivism and his ideas about both law and the rule of law. It also argues that the nature of “conservatism” has evolved and changed over the decades and that Scalia’s jurisprudence broke with the conservative jurisprudence of the pre-Reagan era. The chapter concludes that Scalia’s jurisprudence and career demonstrate—contrary to his central jurisprudential claims—the third fundamental characteristic of American constitutionalism, its truly “living” nature.

Icon

This chapter traces Justice Antonin Scalia’s rise from law school to a position on the Supreme Court and then his emergence as a judicial icon representing “conservatism” and “originalism” in opposition to the legacy of the Warren Court. It locates his rise in his political commitment to the Republican Party, his appeal to President Ronald Reagan and Attorney General Edwin Meese III, and his triumph over his fellow conservative intellectual Robert Bork for the leadership of judicial conservatism and the effort to promote constitutional originalism. Once established on the Court, Scalia’s influence grew until he and his jurisprudence became significant political issues for both national parties, especially in subsequent judicial confirmation hearings and presidential elections. When Scalia died in early 2016, his replacement became a major issue in the presidential campaign, and the new Trump administration promised to replace him with the most Scalia-like candidate it could find.