While discussing his 2012 book "Reading Law: The Interpretation of Legal Texts," Scalia said he would want Judge Frank Easterbrook, of the U.S. Seventh Circuit, in the Midwest, to replace him.
“If there is one other judicial name associated with the two principal theories of this book--textualism and originalism--it is Frank Easterbrook,” Scalia said in a little-noticed interview on C-Span in July 2012. “If I had to pick somebody to replace me on the Supreme Court, it would be Frank."
In the interview, Scalia, who died unexpectedly last Saturday, said Easterbrook’s like-minded approach to the law meant they tended to “see things the same.” Yet a closer look at the judges’ rulings suggest sharp disagreements about the regulation of guns in America.
Scalia’s embrace of Easterbrook in spite of differences on gun control represents a stark contrast to a Republican primary race where candidates have insisted Scalia’s replacement maintain the court’s current ideological balance to avoid imperiling the Second Amendment.
“We are one justice away from the Supreme Court effectively reading the Second Amendment out of the Constitution,” Texas Senator and GOP presidential contender Ted Cruz said at a rally in South Carolina Sunday. “Justice Scalia's single most consequential opinion was his opinion in Heller vs. District of Columbia, a landmark case […] we won by 5-4.”
Scalia’s 2008 Heller opinion cemented an individual’s right to own and use a handgun for lawful purposes like self-defense in the home. But Scalia’s opinion left unanswered the question of how the Second Amendment applies -- or doesn’t apply -- to states, which he and Easterbrook would disagree over.
In 2009, Scalia joined a 5-4 majority in reversing Easterbrook’s decision upholding a Chicago handgun ban. In a separate case last December, Scalia wanted to reverse Easterbrook’s decision, which allowed Highland Park, Illinois, to ban semi-automatic weapons, but the Supreme Court declined to hear it.
Easterbrook -- who was appointed to his current position by President Ronald Reagan in 1984 -- earned scorn from the NRA for upholding the semi-automatic weapons ban.
“Judge Easterbrook’s approach conflicts with precedent of this court, ultimately culminating in a test that would unravel the Bill of Rights by justifying infringements that make the public feel safer,” the NRA argued in 2015 a memorandum urging the Supreme Court to overturn Easterbrook, saying his ruling “would effectively permit legislators to trample the constitutional rights of the minority at the whims of the majority.”
Despite disagreement over one of the Constitution’s most politically-charged provisions, Scalia cited Easterbrook as his kindred legal spirit, a feeling which appears to have been mutual.
“This book is a great event in American legal culture,” Easterbrook wrote in his foreword to Scalia’s "Reading Law." “Every lawyer--and every citizen concerned about how the judiciary can rise above politics and produce a government of laws, and not of men--should find this book invaluable.”
See key exchange around 15-minute mark below.