The legacy of Justice Antonin Scalia

Justice Antonin Scalia had a profound effect on the U.S. Supreme Court, consistently adhering to and promoting, sometimes scornfully, a strict constructionist application of the U.S. Constitution.


The U.S. Supreme Court has an incredible effect on American law and public policy and thus on our public schools. You cannot overstate its importance.

The sudden death of any justice would cause a stir. But Antonin Scalia’s passing on Feb. 13, 2016, is of particular importance. He was one of the most influential justices on the most important bench in the United States. He is likely the best-known and most influential justice since William Brennan — an interesting irony, since the two were at opposite ends of the political spectrum. As would be true of any high-profile political figure, Scalia’s passing brought mixed reviews of his work:

“God bless Anthony Scalia, finest Sup Ct Justice RIP” (Rep. Michelle Bachman, Twitter)

“The totally unexpected loss of Supreme Court Justice Antonin Scalia is a massive setback for the Conservative movement and our COUNTRY!” (Donald Trump, Twitter)

“Justice Scalia was a defender of the Constitution, an important conservative voice in the court.” (Rep. Rand Paul, Twitter)

“Today, our country has suffered a deep loss, Justice Scalia was one of the most consequential Americans in our history and a brilliant legal mind who served with only one objective: to interpret and defend the Constitution as written.” (Sen. Marco Rubio, press statement)

But not all comments were favorable.

“Antonin Scalia, who died this month after nearly three decades on the Supreme Court, devoted his professional life to making the United States a less fair, less tolerant, and less admirable democracy. Fortunately, he mostly failed. Belligerent with his colleagues, dismissive of his critics, nostalgic for a world where outsiders knew their place and stayed there, Scalia represents a perfect model for everything that President Obama should avoid in a successor. ” (Jeffrey Toobin, New Yorker)

Scalia joined the Supreme Court in 1986 as a Reagan appointee. Between 1986 and 2014, he was the deciding vote on 342 decisions, according to the Supreme Court database ( He voted on the conservative side in nearly all of these decisions. When he was on the losing side of a decision, he often wrote a dissent. Sometimes, even when on the prevailing side of the case, he wrote a concurrence to make a particular point. In some written opinions, he blasted his colleagues, the parties, and/or the attorneys representing them.

Justice Scalia had a profound effect on constitutional jurisprudence. This is true, generally and specifically, to education cases. On the major education cases, he consistently voted against using race in decision making, against claims related to the separation of church and state, and in favor of greater restrictions on students’ rights. Here’s a closer look at some of these cases and his opinions.


Lee v. Weisman (1992). The Court held 5-4 that clergy-led prayers as part of a public middle school graduation ceremony were unconstitutional. Scalia wrote in dissent: “In holding that the Establishment Clause prohibits invocations and benedictions at public graduation ceremonies, the Court — with nary a mention that it is doing so — lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more long-standing American tradition of nonsectarian prayer to God at public celebrations generally.”

Lamb’s Chapel v. Center Moriches Union Free School District (1993). The Court unanimously held that the public school district violated the rights of a group by denying them after-school access to the school to show a religious film series. Scalia voted in the majority; he wrote a separate concurrence to criticize the traditional analysis used by the majority: “As to the Court’s invocation of the Lemon test: Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. . . . Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart (the author of today’s opinion repeatedly).”

Santa Fe Independent School District v. Doe (2000). The Court held 6-3 that student-led prayers at public high school football games violated the Establishment Clause. Justice Scalia joined in the dissent in this case.

Mitchell v. Helms (2000). By 6-3, the Court upheld the use of federal funds to pay for educational materials in private religious schools. The court, in a plurality opinion, found no Establishment Clause violation where the materials were used in “secular, neutral, and nonideological” programs. Scalia voted with the plurality in a decision written by Justice Clarence Thomas, noting that there was no Establishment violation just because many of the private schools receiving the funds were affiliated with a religion.

Zelman v. Simmons Harris (2002). By 5-4, the Court upheld the Cleveland, Ohio, program of private school vouchers, including religious schools. Justice William Rehnquist wrote the opinion finding no violation of the Establishment Clause; Scalia joined the majority.

Locke v. Davey (2004). The Court held 7-2 that states did not violate the First Amendment by excluding theology students from public scholarships. Scalia, joined only by Justice Thomas, wrote in dissent, “When the state withholds a benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax. That is precisely what the state of Washington has done here. It has created a generally available public benefit, whose receipt is conditioned only on academic performance, income, and attendance at an accredited school. It has then carved out a solitary course of study for exclusion: theology.”

Arizona Christian School v. Winn (2011). The Court upheld 5-4 an Arizona law allowing tax credits for contributions made to school tuition organizations that provide scholarships to students attending private schools, including religious schools. Scalia’s concurrence dealt with the taxpayers’ standing to bring the action to court.


United States v. Virginia (1996). The Court struck down 7-1 the exclusion of women from the Virginia Military Institute, a public higher education institution. Scalia was the lone dissent: “Today the Court shuts down an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and a half. . . . As to the facts: It explicitly rejects the finding that there exist ‘gender-based developmental differences’ supporting Virginia’s restriction of the ‘adversative’ method to only a men’s institution, and the finding that the all-male composition of the Virginia Military Institute is essential to that institution’s character.”

Grutter v. Bollinger (2003). The Court upheld 5-4 the use of race as a part of individualized decision making in admission to the University of Michigan Law School and struck down its “mechanical” use in undergraduate admissions. Scalia wrote a dissent expressing his view that any affirmative action program violated the federal Equal Protection Clause.

Fisher v. University of Texas, Austin (2014). The Court used a strict scrutiny analysis to consider the University of Texas admission policy. Voting 7-1, the Court accepted the university’s goal of diversity and remanded to the lower court the question of whether the admission policy was narrowly tailored to achieve this goal. Scalia wrote a concurring opinion to make clear his opinion that “The Constitution proscribes governmental discrimination on the basis of race, and state-provided education is no exception.”

Lawrence v. Texas (2003). The Court struck down 6-3 the state’s homosexual sodomy laws. Scalia’s dissent, joined by Justices Rehnquist and Thomas, outlined his view of strict constitutional interpretation, “It is clear . . . that the Court has taken sides in the culture war. . . . Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”

Obergefell v. Hodges (2015). The Court upheld 5-4 marriage equality as the Due Process Clause guarantees the right to marry as a fundamental liberty and does not distinguish between same-sex and opposite-sex unions. Scalia wrote a dissent, joined by Justice Thomas: “When the Fourteenth Amendment was ratified in 1868, every state limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.” His opinion scolded the majority for the outcome and mocked Justice Anthony Kennedy’s language as author of the opinion, saying, “The opinion is couched in a style that is as pretentious as its content is egotistic. . . . [T]he opinion’s showy profundities are often profoundly incoherent.”

Student rights

Hazelwood School District v. Kuhlmeier (1988). Scalia voted in the 5-3 majority upholding the right of school administrators to exert editorial control over school newspapers.

Vernonia School District v. Acton (1995). By 6-3, the Court upheld the public school district policy of drug testing student athletes. Scalia wrote the majority opinion in the case: “Traditionally at common law, and still today, unemancipated minors lack some of the most fundamental rights of self-determination — including even the right of liberty in its narrow sense, i.e., the right to come and go at will. . . . [W]e have acknowledged that for many public school authorities act in loco parentis with the power and indeed the duty to inculcate the habits and manners of civility. Thus, while children assuredly do not ‘shed their constitutional rights . . . at the schoolhouse gate,’ the nature of those rights is what is appropriate for children in school.”

Board of Education of Pottawatomie County v. Earls (2002). The Court upheld 5-4 a school district policy requiring all students wishing to participate in extracurricular activities to submit to random drug testing, i.e. urinalysis. Scalia joined the majority opinion.

Morse v. Frederick (2007). The Court upheld 5-4 school administrators’ ability to punish a student for displaying the banner “Bong Hits 4 Jesus” at a school function. Scalia joined the majority opinion.

Since his death, his absence has been obvious on the Court. His personality and views were always evident during oral arguments. His passion for a strict construction of the Constitution was clear in his writing. He voted in the majority in many opinions but was not a “swing” vote since his direction never varied. He was a steadfast conservative strict constructionist.

We still do not know who will replace him. The outcome of the presidential election will determine whether he will be replaced by someone more liberal or perhaps more conservative than he was. Since the Court is evenly balanced by ideology at this point, the judicial appointment is key to the nation’s legal direction.


Originally published in September 2016 Phi Delta Kappan 98 (1), 76-774. © 2016 Phi Delta Kappa International. All rights reserved.


JULIE UNDERWOOD ( is the Susan Engeleiter Professor of Education Law, Policy, and Practice at the University of Wisconsin-Madison.

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