The Scalia Revolution

Antonin Scalia's legacy ten years after his death.

Justice Antonin Scalia died ten years ago today, and he left an extraordinary legacy to the American people. Justice Scalia single-handedly revived legal formalism and textualism, which had been dead in the legal world since the Legal Realist Revolution of the 1920's.

Justice Scalia's revival of textualism and rejection of legislative history and original intent remains dominant today on the Supreme Court and in the lower federal courts, and it is increasingly important in legal academic writing. Justice Scalia taught all of us that words matter and that it is the original public meaning of a text which is the law, and not the intentions of those who wrote it.

In championing formalism and textualism, Scalia built on Attorney General Ed Meese's emphasis on originalist history, and Judge Robert H. Bork's insistence on the rule of law as a constraint on judges. Each of these three great men revolutionized American constitutional law and the law of statutory interpretation in their own distinctive way.

But the job of harmonizing his own textualism with Meese's emphasis on history and Bork's emphasis on the rule of law for judges fell to Justice Scalia because he was the one of these three men who was on the Supreme Court from September 26, 1986, until his death on February 13, 2016. Scalia, through his sheer brilliance, the force of his personality, and the energy and passion that he poured into doing his job as a Supreme Court justice transformed American law.

U.S. Supreme Court opinions in 2026 are far more formalist, more textualist, more historical, and more conscious of the rule of law because of Justice Scalia. All nine of the current justices have been profoundly shaped by Scalia's legacy even if only two of the justices, Clarence Thomas and Neil Gorsuch, view themselves as always being bound by the original public meaning of texts. Justice Thomas, but not yet Justice Gorsuch, has said essentially that he never feels bound by precedent. Justice Scalia did follow longstanding precedents that were non-originalist, but which were deeply rooted in American history and tradition.

Justice Scalia, like Justice Oliver Wendell Holmes before him, wrote dissents that have become today's majority opinions. Dobbs v. Jackson Women's Health Organization (2022) finally heeded Scalia's call for the overruling of Roe v. Wade (1973). Scalia's passionate demand that we leave abortion law up to the people of the fifty states won out because of his many powerful dissents, especially in Planned Parenthood v. Casey (1992).

Racial preferences and opposition to affirmative action were frequent topics of Scalia's other dissents. Thanks to Students for Fair Admissions v. Harvard (2023), and to the Herculean efforts of the Trump Administration, racial preferences are being torn up root and branch all over the country.

The Roberts Court, with huge help from President Trump, may be on the verge of getting rid of Humphrey's Executor (1935) and the headless fourth branch of the government. If the Supreme Court so rules, it will be in part because of Scalia's powerful dissent in Morrison v. Olson (1988), which was surely one of the most unsound Supreme Court majority opinions of all time.

When Justice Scalia died on February 13, 2016, his death galvanized the whole country's political system. President Barack Obama nominated a feckless man, Judge and future Attorney General, Merrick Garland, to replace Justice Scalia. Senate Majority Leader Mitch McConnell, in the most consequential act of his long career, kept Scalia's seat open to be filled by the new president who would be elected in 2016.

American voters on election day 2016 knew that they were choosing between Hillary Clinton and Donald Trump to fill the crucial Scalia seat on the Supreme Court, and voters in the key Electoral College battleground states chose Trump. Public opinion polls of the 2016 electorate showed that of those voters for whom choosing a Supreme Court Justice was their top issue, 57% voted for Donald Trump and 43% voted for Hillary Clinton.

Justice Scalia's replacement was such a political earthquake with the American people that it may have changed the outcome of a presidential election and produced a Supreme Court with six good Republican-appointed justices on it. I cannot think of another instance in 237 years of American history where there was a good chance that the death of a Supreme Court justice changed the outcome of a presidential election.

As wonderful as today's Supreme Court is, it must be acknowledged that none of the nine current justices are public intellectuals like Scalia. None of them tour every top left-wing law school, and ninety countries all over the world, preaching the Gospel of original public meaning textualism.

As a result of this gap, some like former Scalia law clerk Adrian Vermeule have taken to challenging originalism and urging for right-wing judicial activism now that conservatives have the votes. Justice Scalia would have been appalled, but not surprised, that heresies like this would appear, and he would have done everything in his power to stamp them out.

Whoever you are and whatever you are doing today, dear reader, please pause for a second to reflect for a moment on the brilliant life and legacy of Justice Antonin Scalia. God made only one man like that, and it was our great privilege to share this earth with him for a time.

Comments

[The Margrave of Azilia]

What's wrong with saying that, when there are ambiguities and gaps in the law, the courts should adopt the interpretation which best serves the public interest?

If the lawmaker *chooses* to adopt ambiguous terms, then why not interpret the law consistently with accepted principles of good public policy?

[Joe_dallas]

What is "good public policy" other than the judge's policy preference?

As in Kelo - is a higher tax base good public policy?

As in ginsburgs dissent in Goodyear or encino motors, or her concurring opinion in ACA where she discussed her preferred policy preference.

[The Margrave of Azilia]

If "good public policy" is ambiguous, so is "original public meaning."

How can one pin down the original public meaning of ambiguous phrases? If the lawmaker doesn't define a term, how can someone confidently step in and interpret what the lawmaker *really* meant?

Of course, many laws which we're told are ambiguous become less so when we look at the provision's relation to other laws, accepted usage of technical terms, etc. But when ambiguity remains, how can we speak with confidence of what the provision *really* means?

[Joe_dallas]

Original meaning may be somewhat ambigiouus.
Substituting "good public policy" is an excuse to legislate from the bench which is absolutely wrong.

[The Margrave of Azilia]

First, this is presupposing that the lawmaker passes a vague law, which must be interpreted using *some* canon of construction.

Figuring out the "original public meaning" of a law whose text is vague would be quite a challenge. If the lawmaker chose a vague text, are we sure we'd get a more precise meaning by trying to pin doesn its public meaning?

But if by "original public meaning" you mean "how has a technical term like 'habeas corpus' been interpreted by judges and jurists," then that's a legitimate question, and if that's what original public meaning means, then go for it!

[Joe_dallas]

You brought up "good public policy".

I gave you 4 examples of the judge's use of deciding the case based on "Good Public Policy" (granted two of which were dissents). All four of which pretended that original meaning was too ambiguous to determine original meaning of either the constitution or the text where the justice[s] substituted their policy preference.

[The Margrave of Azilia]

"I gave you 4 examples"

Then I must have forgotten. Was that on another thread?

[Joe_dallas]

The 4 examples was my first response to your original comment.

Can you make a better attempt at justifying "good public policy" as a valid method of constitutional interpretation?

[The Margrave of Azilia]

Oh, I see them.

For the Kelo example: The question was whether the state can take private property for private use. Since the Constitution requires compensation when the government takes private property for *public* use, the implication is that it *can't* take private property for private use. And "use" is a technical term, it doesn't mean public *benefit* but actual use by the public, like highways, etc.

So in that case there wasn't much ambiguity into which one can plug public policy. Though of course the (narrow) majority had a different analysis.

[Joe_dallas]

Thanks for confirming the Stevens substituted policy preference.

[The Margrave of Azilia]

Thanks for your thoughtful, detailed rebuttal which engaged with my remarks. /sarc

[Joe_dallas]

My rebuttal was more than sufficient to engage your attempt to justify using "good public Policy " as a valid method of constitutional interpretation.

Now try to do a better job of justifying " good public policy"

[The Margrave of Azilia]

Your "rebuttal" was a conclusory assertion that I was using Stevens' alleged public-policy arguments. You didn't engage with my actual argument that there wasn't much ambiguity to exploit.

[Joe_dallas]

You are skipping / ignoring how far Stevens engaged in "good public policy"

Stevens used "good public policy" as the basis for using increased tax value as "public use" .

Back to your original comment - you havent justified the use of "good public policy " as a valid constitutional interpretation. You asserted it as valid - its you that has to justify it.

[The Margrave of Azilia]

I can't speak for Stevens, I discussed how I didn't think public policy came into Kelo at all since, properly interpreted, the Constitution doesn't have ambiguity as far as taking private property for private use is concerned.

My argument is that public - policy only comes in if the law is ambiguous and needs some principle of interpretation. Why not use the publc interest as the interpretive principle in such cases?

How would *your* interpret an ambiguous law? What principles would you use.

[Joe_dallas]

good public policy absolutely came into play with Kelo. Granted Stevens attempted to disguise it, it remains clear that he used a better value, better tax base, etc as a good public policy substitute as a valid "public use".

You still havent justified "good public policy " as a valid method of constitutional interpretation.

[The Margrave of Azilia]

I really could not care less *what* Stevens said.

[The Margrave of Azilia]

You haven't explained what principle *you* would use to interpret ambiguous laws, and how your method is better than mine.

[Joe_dallas]

Not only can you not provide justification for treating "good public policy" as a valid constitutional interpretation method, you dont care what Stevens wrote in one of the most egregious examples of "good public policy" interpretation.

You were the one that advocated "good public policy" interpretation. You are the one responsible to defend it. I explained why it is an erroneous methodology.

[The Margrave of Azilia]

I'm not sure why I have to agree with Stevens' reasoning, which is something you brough up.

You haven't explained what principle *you* would use to interpret vague laws, and how it's better than frankly avowing that ambiguous laws should be interepted in a way which promotes the public interest.

Do we say that "equal protection" means separate but equal, because Congress and the states didn't think it banned segregation? Or maybe we should stick with the text - equal means equal, and anyway carving out a segregation exception would be bad for the country.

[Joe_dallas]

Crap - Go back to your original comment which was the first comment of the day.

you advocated "good public policy" as a valid constitutional interpretation method. I showed you why it is bad.

Why do you continue to dodge your original assertion? Because you know your original assertion is intellectually bankrupt?

[The Margrave of Azilia]

You didn't "show" me anything, and I gave a specific example where using public policy had a different result from "originalism."

If you use original public meaning, then you have to face the fact that the framers of the 14th Amendment didn't think they were banning all segregation. But they *did* use the broad term "equal protection." Trying to harmonize "equal" with "separate" would simply be bad policy, and isn't required by the text.

[Joe_dallas]

Weird delusional exchange

The first comment of the day advocated the use of "good public policy" as a valid method of constitutional interpretation.

The author of the comment refuses to provide justification for its use.

[Kazinski]

Because that is not their job.

If they can't figure out with a degree of certainty what Congress wanted then the should void that law or section for vaguenes.

Otherwise they are legislating, as you seem to acknowledge and that violates the separation of powers.

You could make a better case for Executive Orders or regulations filling in ambiguities and gaps, like the current system, because the executive is elected and can be voted out. But that just underscores why it should be left to Congress as the framers intended.

[Sarcastr0]

It's not what Congress wanted, it's what they *wrote* [absent truly absurd results]; that's part of how Scalia moved the Court and legal thinking generally.

There will always be ambiguities; human language is not the best at precision or clarity [this is why legal language looks so stilted - it's trying to do a thing language is not ideally suited for.]
That's why there are cannons of interpretation, and legislative history, etc. to resolve such things.

It wouldn't be practical either.

[Longtobefree]

The proper course is to declare the particular law unconstitutionally vague, and make congress fix it, not to legislate from the bench.

[Riva]

Oh I don’t know, maybe because judges aren’t legislators and aren’t supposed to make policy?

[The Margrave of Azilia]

Of course they shouldn't, which is why lawmakers should be precise in their enactments. But if not, then the interpreter has to fill in the gaps. Using what principles?

[Riva]

No, if a judicial interpreter actually has to write the law before enforcing it, then he’s exceeding his judicial authority under the Constitution. If you want to write laws, get elected to Congress.

[The Margrave of Azilia]

Sure, and Congress should write clearer laws, so there are fewer gaps which interpreters need to fill.

[Joe_dallas]

I am currently reading " Worse Than Nothing: The Dangerous Fallacy of Originalism" by Erwin Chemerinsky which discusses the fallacy of originalism.

One of the key complaints Chemerinsky raises is originalism does not provide judges with "discretion".

Without discretion, how is the judge allowed in implement his / her preferred policy?

[JoeFromtheBronx]

Originalists have lots of discretion.

There are many types of originalism, each yielding different outcomes in different situations.

Individual types of originalism result in different outcomes, depending on how the evidence is applied.

Originalists ("I'm not a nut," said Scalia) cite various other things, such as stare decisis, to provide a limit on originalism.

So, not only is a single word without context not very helpful in explaining his view [he's also not exactly a median liberal], the conceit that originalism restrains discretion is just that.

The prudential arguments for originalism are dubious upon reflection of experience and overall logic.

[Joe_dallas]

Bottom line - originalists are limited in their discretion. Non originalists have free reign for unlimited discretion.

[JoeFromtheBronx]

Both have lots of discretion. Both have limits.

One thing many non-originalists realize or openly admit is what many originalists do not realize or openly admit is that they are making certain choices to apply the law, and that provides some humility.

Originalists ignore and/or hide their discretion with deluded claims of assurance that they are just following original understanding, which they cannot even agree upon themselves about.

And admit that they often don't apply for various reasons anyhow.

[Joe_dallas]

originalism has far more limits on discretion. You fail to admit that non - originalists have free reign for discretion. As noted above with Margrave, when caught in obvious examples of using full discretion, they not only cant justify the full discretion, the dodge the issue.

[Martinned2]

Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653.

One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is "an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as "discrimination" which it is the function of our judgments to deter. So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously "mainstream"; that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal; that proposals to ban such "discrimination" under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H.R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such "discrimination" is mandated by federal statute, see 10 U.S.C. § 654(b)(1) (mandating discharge from the armed forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such "discrimination" is a constitutional right, see Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

[Old Smokin' Egg]

Before we canonize Scalia, let's consider one of his worst decisions: his concurrence in Raich.

Up to that point, the Supreme Court had taken valuable steps toward restricting Commerce Clause powers, with the decisions in Lopez and Morrison. However, when Raich came before the court, Scalia opted for an interpretation of the Clause that gave the government ample powers.

It's difficult to see any principle underlying this. Unfortunately, the obvious explanation is that Scalia's was a results-oriented decision: he disapproved of the Gun-Free School Zones Act and the Violence Against Women Act, but favored Federal bans on marijuana.

In Raich, Scalia refused to provide a majority vote that would've further trimmed back the excessive Commerce Clause powers awarded by the New Deal courts. He allowed his visceral dislike of marijuana to overcome his belief in the government's limited powers. And this refusal to continue the work of curtailing those powers is his real legacy.

[JoeFromtheBronx]

" Scalia opted for an interpretation of the Clause that gave the government ample powers."

The Constitution gave the [federal] government ample powers. A prime reason for its ratification was to expand the power of the federal government over certain things, including commerce.

The interstate and international commerce of marijuana, as spelled out by the majority and concurring opinions, was validly enforced. However bad it is as a policy.

It is a huge industry. The commerce is the sort of thing the Commerce Clause is there to regulate. It is not merely about the possession of a gun near a school with no connection to commerce or a weak connection. Or the possibility violence will affect commerce. It is a billion-dollar industry.

The Constitution is not just a libertarian document.

[The Margrave of Azilia]

The argument, as I understand it, was that privately-possessed weed (or wheat) could be used in interstate commerce, or to compete with weed (or wheat) sold in interstate commerce, so Congress could regulate it.

But the fact is it didn't cross state lines, people were growing it at home.

Congress should not have an unlimited power to regulate anything it wants by sticking an interstate-commerce label on it.

An alternate basis for the decision could be the enforcement of the UN anti-drug treaty, but perhaps the Supremes didn't want to use such an internationalist argument.

[Josh R]

Raich was a 6-3 decision, so Scalia's vote wasn't needed.

I found Scalia's concurrence much clearer than Stevens' majority opinion in how it better explained that it is the Necessary and Proper Clause applied to the Commerce Clause that leads to the results in Wickard and Raich. Scalia also did a better job at distinguishing regulations of economic activity which have a substantial affect on interstate commerce and any regulations (even those not of economic activity) that are necessary to make a separate regulation of interstate commerce effective. He persuasively distinguished Lopez and Morrison as falling into neither of those buckets.

However his resultant streak showed in NFIB (Obamacare). As I see it, the insurance mandate easily fits as being necessary to make effective guaranteed issue and community ratings, both of which are regulations of interstate commerce. Thus, it doesn't matter if the mandate is a regulation of economic activity.

[JoeFromtheBronx]

I think Scalia (a Trump fan) was a flawed person.

He had various good points. It was good that he debated his opponents, though he did not always do it fairly and/or with proper nuance. I think that also comes up when grading his writing.

I don't think his opposition to legislative history stands up. Some of his positions were knee-jerk. And he too often was a jerk.

That particularly bothers me. Being a jerk is too often a thing these days, including with people like Gorsuch. This includes during oral argument. RBG might have found him amusing, but not me.

I disagree with him on the merits on various things but that happens overall.

[Sarcastr0]

Scalia had some terrible and retrograde cultural views.

Procedurally he was hit-or-miss. His originalism always smacked more of political cover for those views than doctrine; he wasn't a true believer like Gorsuch.

But even so he had a clear vision of the law, in terms of formalism, starting with the text, and dealing with ambiguity. His vision was one with the intellectual force to be able to carry the day more often than not.

Intellectual force alone doesn't do it, though. You also gotta admire his hustle. He was flexible and willing to compromise to move his view down the field. And he knew the value of comity, and wasn't a dick to his opposites on the bench. And he knew how to write for precedent, which is something I sorely missed from Kennedy.

And I gotta say his anger was an amazing muse for him. He was pretty sober and clear in his main opinions, but his dissents...I hated just about all his dissents substantively, but they are fun to read. Especially when it was a muddy Kennedy main opinion - you could just see him puffing up like a grumpy frog, even as he was clearly having a ball.