October 26 2016
In February 2016, nearly one-third of Americans had no idea who Justice Scalia was. An additional 12% had formed neither a favorable nor unfavorable opinion. This, for the legal giant who transformed the way judges go about constitutional and statutory interpretation. But the next President may well appoint four Supreme Court Justices, changing the balance of the Court for the next 30 years, and the public is beginning to notice. Indeed, according to polls, for many voters, the impact on the Supreme Court is second only to the economy in the 2016 Presidential Election. It is thus high-time to consider the legacy left by Justice Scalia.
With his larger-than-life prose, Justice Scalia transformed American Law by providing the theoretical framework for maintaining limited government. As Justice Elena Kagan remarked upon his death, “Nino Scalia will go down in history as one of the most transformational Supreme Court Justices of our nation. His views on interpreting texts have changed the way all of us think and talk about the law.” This transformational change was two-fold.
First, Justice Scalia radically altered the way we think about our Constitution. He believed that the document should be interpreted according to its original meaning. Originalism, his trademark constitutional interpretation theory, asks not what the Constitution should say, but rather, as a historical matter, what did the text mean when it was enacted. In stark contrast to living constitutionalism, this method of interpretation con nes the choices and preferences of unelected judges and thus is a powerful tool to combat judicial activism.
Second, but no less important, Justice Scalia changed the way judges and lawyers approach work- a-day statutory interpretation. Before Justice Scalia, it was common for Supreme Court decisions interpreting statutes to rely upon everything but the text. Statutory purpose, legislative history, workability, and policy considerations held the keys to statutory interpretation. The courts commonly asked how a statute was supposed to operate (in their view) instead of asking what it was that the law actually said.
With his colorful and persuasive opinions, Justice Scalia placed the focus of statutory interpretation back on the statutory text. The arguments made by lawyers and by courts today begin with the text. This return to enacted language protects the constitutional requirement that it is Congress, and not the judiciary, that is to make the law.