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Influence on the Supreme Court

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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3 Responses

  1. Dan Cole says:

    Gerard:

    Into which categories does Scalia fit? The one that seems most obvious is 4, based on Scalia’s overarching view of the constitution. But I’m not convinced that he has such an overarching view. No matter how many times he says that the Constitution is a “dead” instrument, his originalism is, at best, inconsistent. His opinions are far more instrumental and outcome-oriented than he would have us believe.

    So, if he is not a great visionary, where does he fit? He’s obviously never been the median justice. Neither is he a coalition-builder – he’s as likely to excoriate conservative colleagues as liberal ones, if he disagrees with them on even a minor issue.

    Finally, some might argue that he’s a great writer. He can be pithy to be sure, but he’s certainly not in the league of a Holmes, a Learned Hand, or a Cardozo, when it comes to writing logically sound, forceful, elegant, and concise opinions. Like most modern jurists, he seems unable to say what he has to say, in convincing fashion, in 20 pages or less; they love the sound of their own voices too much.

  2. TJ says:

    Gerard,

    One quibble. You are right that few people care in the long run whether a particular opinion was written by the median justice or somebody else. But you need to remember that without the median justice there would be no opinion in the first place. In other words, the median justice perpetuates his influence by the force of stare decisis, more than just being the flavor of the day. The coalition-builder has influence because he can persuade the median justice. Surely no justice is more persuasive to himself than himself.

  3. Vicky Woeste says:

    Ruth Marcus’s review puts Brennan in the coalition-builder category, but apparently Brennan was a bit touchy about his image there: http://www.washingtonpost.com/wp-dyn/content/article/2010/10/05/AR2010100503831_2.html?nav=hcmoduletmv

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