The Measure of a Justice: Justice Scalia and the Faltering of the Property Rights Movement within the Supreme Court

The ability of a Supreme Court Justice to craft a majority opinion is the most important and least understood of the skills that distinguish between ordinary and truly extraordinary jurists. The Justice who is able to do so is the one most likely to produce Court opinions that, because of their persuasive force, promote the kind of public respect ultimately necessary for the Court's authority. The publication of the papers of Justice Harry Blackmun (The Blackmun Papers) in 2004 allows an assessment of Justice Antonin Scalia's effectiveness in crafting Supreme Court precedent in the protection of property rights. The Papers reveal a Justice not only failing to craft majority opinions for the Court with persuasive staying power, but one who instead repeatedly alienated over time the individual Justices with whom he needed to forge a stable, workable majority favoring constitutional protection of property rights.

Instead of benefiting from Justice Scalia's favored bright-line rules, the property rights movement has recently suffered several losses in the Supreme Court, culminating in spring 2005 with substantial defeats in all three property cases then before the Court.