CNN
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Justice Antonin Scalia, a great dissenter, once remarked, “My most important function on the Supreme Court is to tell the majority to take a walk.”
Today, many of Scalia’s former law clerks are conspicuously on the frontlines at the Supreme Court, where they have gone from junior partners-in-dissent to the masters of the right-wing legal agenda.
In the 1990s, after experiencing a string of losses in disputes over societal dilemmas, Scalia wrote of the majority. “Day by day, case by case, it is busy designing a Constitution for a country I do not recognize.”
Today, liberals might adopt that mantra. Recent rulings in cases engineered by former clerks to Scalia and other conservative justices include abolishing a constitutional right to abortion, bolstering Second Amendment gun rights and ending campus affirmative action.
Those groundbreaking decisions would have won the vote of Scalia, a right-wing icon who died in 2016. His writings, once regarded as extreme, have become conventional at the high court, in large part because of former law clerks who have pushed his agenda as advocates or as judges themselves.
“The justices’ ideas are living on through their former clerks,” Georgetown University constitutional law professor Brad Snyder. “This is a way that Scalia – long after he stopped writing – is still having a profound influence on American law and politics.”
The most obvious example is Justice Amy Coney Barrett, a former Scalia clerk whose 2020 appointment transformed the bench and who has become a key vote in current litigation.
Yet the Scalia-linked pattern will be especially pronounced in upcoming months with the advocates at the lectern, beginning with D. John Sauer, whom President Donald Trump has named for solicitor general, the government’s top lawyer before the Supreme Court.
Sauer represented Trump last year in his successful claim of immunity from prosecution. Based on his record, Sauer may prove to be the most aggressive of the former Scalia clerks who’ve served as US solicitor general.
Previously, Paul Clement, named by George W. Bush in 2005, and Noel Francisco, appointed by Trump in his first term, held the prestigious post. Now in private practice, Clement and Francisco regularly represent high-profile clients at the Supreme Court lectern. Clement steered the court to the groundbreaking New York State Rifle & Pistol Association v. Bruen decision that expanded gun rights in 2022.
Another hard-hitting former Scalia clerk is Jonathan Mitchell, who represented Trump at the Supreme Court in his successful effort to remain on state primary ballots last year. Mitchell also crafted the anti-abortion strategy in a Texas case that laid the seeds for reversal of Roe v. Wade in 2022.
In April, Mitchell will argue a case developed to undermine the Affordable Care Act’s preventative health care requirements. In the early battles over the law known as Obamacare, Scalia voted against the ACA in 2012 and 2015. But he was in dissent.
The formidable work of clerks to Scalia, who served 1986 until his death in 2016, illustrates the potential legacy of Supreme Court justices beyond their opinions in cases. His acolytes and to varying degrees those of Justices Clarence Thomas and Samuel Alito are driving the law in America.
Whether as advocates before the justices, or as jurists themselves, they are reinforcing the hard-right justices they served at the start of their career. The trend could seal the conservative dominance for decades.
Scalia was a flamboyant justice who saw the law in black and white. On a personal level, he engaged in neither equivocation nor handwringing.
Beginning in the 1980s, first as a US appellate court judge, he advanced an originalist form of constitutional interpretation, looking to the framers’ understanding of the Constitution and amendments at the time they were written.
That method is prevalent among conservative jurists today, as is Scalia’s “textualist” approach for statutes, which adheres to the words of the law and shuns such legislative history as congressional committee reports and floor speeches.
Scalia also had an in-your-face argument style that once prompted his friend and colleague Justice Ruth Bader Ginsburg to say, “I love him … but I sometimes I’d like to strangle him.” When university students protested a Scalia appearance after he refused to recuse himself from a 2004 case involving his duck-hunting partner Vice President Dick Cheney, Scalia closed the Q-and-A session with “Quack, quack.”
Justice Antonin Scalia’s life in photos
During Sauer’s hearing before the Senate Judiciary Committee in late February, Sauer called Scalia a “titanic influence on the law” and courageous in his stands.
At the lectern, Sauer can be a brash advocate. Particularly controversial during his defense of Trump last year was Sauer’s insistence that a president who ordered the assassination of a political opponent by Seal Team Six could be prosecuted only after a House impeachment and Senate conviction.
The Supreme Court would side with Trump in a 6-3 ruling.
Scalia, to be sure, selected some law clerks with less swagger. Justice Barrett, a conservative who when nominated in 2020 said Scalia’s “judicial philosophy is mine, too,” has moved cautiously on some issues. And there are Scalia clerks who represent traditional business clients, such as William Jay, who has argued for pharmaceutical companies, and in December represented Eagle County, Colorado, in an environmental dispute. Less common is a left-leaning Scalia clerk at the lectern, such as Adam Unikowsky, who in October pressed an Alabama civil rights claim.
But some of the more prominent Scalia clerks in this era recall the jurist who regularly pushed against convention.
Hashim Mooppan, another former Scalia clerk, previously served in the Department of Justice during Trump’s first term and will soon join Sauer to help lead the Office of the Solicitor General. In the first Trump administration, Mooppan defended the travel ban that affected majority-Muslim countries and the effort to end the so-called Dreamers’ immigration program.
Over his three decades on the Supreme Court, Scalia vigorously opposed the court’s expansion of constitutional individual rights, especially for women to end a pregnancy and for same-sex marriage. Years before the 2015 landmark allowing gay marriage, Scalia said the court had signed onto the “so-called homosexual agenda.”
Sauer similarly opposed abortion rights, gay marriage and LGBTQ interests, while in private practice and when he served as Missouri state solicitor general from 2017 to 2023.
In 2021, he was defending a Missouri prohibition on abortion at eight weeks of pregnancy, which conflicted with the 1973 Roe v. Wade, when the Texas so-called heartbeat law reached the Supreme Court.
The Texas law prohibited abortions after a “fetal heartbeat,” at about six weeks, and included a procedural barrier making any legal challenge to the law difficult.
It was developed by Jonathan Mitchell, who defended the law at the Supreme Court in November 2021, along with then-Texas Solicitor General Judd Stone, also a former Scalia clerk.
A year after the Supreme Court let the Texas abortion ban take effect, a Mississippi case, Dobbs v. Jackson Women’s Health Organization, led to the full reversal of abortion rights nationwide – a move backed by Sauer in his post for Missouri. That Dobbs case was argued by Mississippi state solicitor general Scott Stewart, a former law clerk to Justice Thomas.
Unlike Thomas, Scalia did not live to see the Dobbs decision and the end of the 1973 Roe milestone – a change made possible with the vote of Justice Barrett.
But in his time, Scalia was able to craft a five-justice majority to break from a separate precedent on the Second Amendment and to declare an individual right to possess a firearm in the home for self-defense.
That 2008 decision was expanded beyond the home in the 2022 Bruen case, brought to the justices by former Scalia clerk Clement. Sauer, again on behalf of Missouri, backed the effort in a brief that heavily cited Scalia’s 2008 opinion in District of Columbia v. Heller.
Scalia’s most memorable assertions were delivered in dissent, however. When he protested the 2015 decision declaring a right to same-sex marriage, he mocked the lofty language of the majority, saying if compelled to sign onto such phrasing, “I would hide my head in a bag.”
With an extra dose of scorn, Scalia compared the court’s reasoning to “the mystical aphorisms of the fortune cookie.”
