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Study: Scalia in the Casebooks

By William Vogeler, Esq. on January 05, 2018 | Last updated on March 21, 2019

Antonin Scalia has been historically recognized for his influence on the law, and now two researches have quantified it.

In a treatise, the authors show how often Scalia's ideas are explored in casebooks on constitutional law. They say he ranks among the highest of Supreme Court justices who are referenced in the cases.

However, the study also reveals Scalia did "not tower over" other jurists. It may have something to do with the justices who had power to assign opinions.

Near the Top

Brian T. Fitzpatrick and Paulson Varghese of Vanderbilt University School of Law co-authored the article, "Scalia in the Casebooks." It appears in the most recent issue of the University of Chicago Law Review.

"We find that Scalia is at or near the top of most of the metrics we explore here, but he does not tower over the competition," they say.

The writers sorted out Scalia's opinions relative to other justices, identifying how often he is referred to by name in the notes preceding and following the principal cases. Their findings substantiated the legacy that the jurist left.

However, they found that Justices William Rehnquist and John Paul Stevens appeared in more opinions. Fitzpatrick and Varghese noted that Rehnquist and Stevens also had the responsibility of assigning opinions to their colleagues to write.

The Alito Exception

With the assignment factor in mind, the researchers said another justice stood out in their study.

"We find that the most notable exception in the data is not Scalia, but Justice Samuel Alito: he is included in our casebooks to an especially surprising extent given that, until this year, he has always been the most junior member of his wing of the Court," they wrote.

David Lat, writing for Above the Law, saw the value in the study. He said Alito is "perhaps the most underrated member of the current Court."

"[H]is intellectual prowess and analytical rigor are familiar to anyone who reads his opinions or listens to him at oral argument -- where he doesn't speak as often as others, but when he does speak, his subtle yet incisive questions cut to the heart of a case," Lat said.

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