The James Wilson Foundation on Natural Rights and the American Founding

Who Deserves Scalia’s Mantle?–Garrett Snedeker in The American Conservative

With Who Deserves Scalia’s Mantle?, JWI Deputy Director Garrett Snedeker in the March/April 2023 issue of The American Conservative considers whether a live debate on the subject of administrative law is a microcosm for the debate over the future of the conservative legal movement. And claiming the mantle of Justice Scalia is key for both sides in this debate. Some excerpts:

“The debate over Chevron is really a debate about the future of the conservative legal movement and about who can claim the mantle of Justice Scalia.” 

“[T]he Chevron doctrine “may countenance one of the largest transfers of political power in our history, from Congress to the executive.” One member of the Supreme Court, Justice Neil Gorsuch, noted that Chevron “effected a revolution in 1984.” But federal judges, as much as the Supreme Court, had a role in this enormous transfer of power.”

“Chevron is in danger, therefore, because of a counterargument that has developed in conservative legal circles. This counterargument is skeptical of the reasoning of Chevron and the growth of the administrative state. But is there unity in conservative legal circles on revising Chevron?” 

“Unfortunately, Scalia’s death in 2016 robbed us from seeing just how much his views on Chevron would change further if at all. But Merrill is certain that the experience of the Obama years convinced many judges and lawyers in the conservative legal movement to prioritize judicial recognition of the separation of powers and to become hostile to Chevron even if that meant a repudiation of Scalia’s earlier views on it.”

Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790