(Franz Jantzen/Collection of the Supreme Court of the United States.)
The U.S. Supreme Court reeled with shock on Feb. 13, 2016, when the news from Texas arrived: Antonin Scalia, the larger-than-life justice from New Jersey, had died at age 79.
The entire institution suffered a blow that lingered for months, according to justices and others familiar with the workings of the court.
“It was and still is hard to believe,” said Jonathan Urick, one of Scalia’s law clerks when he died, now an associate at McGuireWoods. The court became “a grayer place,” as Justice Stephen Breyer predicted soon after Scalia’s death.
A year later, no other justice has claimed Scalia’s chambers. His office belongings are still being packed up, and no destination has been decided on for his papers. His death—and the politics of replacing him—still slows the scheduling of cases, as the court awaits a ninth justice to break ties and carry the workload. Here’s a look at other ways the court has changed in the year since he died:
Less laughter: In the empirical studies of laughter triggered by justices’ remarks during oral argument, Scalia always was far ahead of his colleagues. “There is indeed less laughter at the court this term,” said Boston University School of Law professor Jay Wexler, whose Twitter handle is @scotushumor. “Breyer is leading the pack in getting laughs, but by no means has he filled the gap left by Scalia.” Scalia won laughs mostly with “pithy zingers,” Wexler explained, while Breyer often gets his with lengthy and odd hypotheticals that may be more funny-weird than funny-funny. In 2012, during oral arguments over the Affordable Care Act, Scalia channeled a Jack Benny joke that triggered enough laughter that Chief Justice John Roberts interjected, “That’s enough frivolity for a while.”
Less fear: At an oral argument years ago Scalia asked a question, and when the lawyer paused too long before answering, he bellowed, “You have four choices, counselor: Yes, no, I don’t know, or I’m not telling. Which is it?” In 2014, Scalia chided a nervous lawyer who appeared to be reciting a prepared script, a no-no at the court. “Counsel, you are not reading this, are you?” Scalia said. The lawyer froze until Breyer told him, “It’s all right.” Other justices can be tough on lawyers, but no one could make a lawyer sweat like Scalia. Still, Sidley Austin veteran advocate Carter Phillips said, “I do miss the way he asked questions. Even when he was hostile it was always fun to engage with him. More fun, of course, when he was not hostile.”
Return of legislative history: In the year since Scalia’s death, the phrase “legislative history” was uttered during 22 oral arguments. The year before he died, it was mentioned in only 13 cases, reflecting the wisdom of oral advocates who did not want to incur Scalia’s wrath. Scalia viewed legislative history as a “devil’s playground” of contrived congressional reports and speeches that were useless in interpreting statutes. Lawyers learned over time not to use it as proof of a certain interpretation—at least when they wanted to win Scalia’s vote. But even without Scalia, says Sidley’s Phillips, “The court still looks at statutes the same way it did before he died—start and often stop with the language of the statute.”
Fewer lifelines: Scalia could knock a lawyer off balance with tough questions. But when he wanted to help a struggling advocate in answering a colleague’s question, he would eagerly throw a lifeline. “Shouldn’t your answer be…” he would ask rhetorically, or, “The correct answer is…” Of course the lawyer would say yes and thank you. Without Scalia, lawyers who are in trouble at oral argument may have a harder time getting back on track.
Scalia citings: New Scalia opinions no longer liven up the court’s output. But his legacy still runs through its jurisprudence. More than two-thirds of the decisions issued by the court since Scalia died cite one of his opinions, according to research conducted for The National Law Journal by CourtListener and Adam Feldman of the Empirical Scotus blog. Scalia’s actual name appears in 26 decisions, usually citations of concurrences or dissents he authored. Some of the citations also mention “Reading Law: The Interpretation of Legal Texts,” the 2012 book Scalia wrote with Bryan Garner. It wouldn’t hurt for brief-writers to cite that book too.