Justice for Scalia

Appointed to the United States Supreme Court by Ronald Reagan in 1986, Antonin Scalia has already proved a remarkable justice. Much concerned with questions of legal theory, he has brought to the bench a sharp intelligence, lively prose that fairly jumps from the dreary pages of the Supreme Court reports, and a determined commitment to reform the ways courts interpret the law.

Scalia holds strong convictions. Charming and pugnacious, he appears to enjoy and sometimes even to court controversy. To the general public this tendency is most visible in Scalia’s many opinions that articulate conservative positions on hotly contested issues like abortion rights and affirmative action. But to the legal profession Scalia is equally well known for his insistent advocacy of the interpretative method known as textualism.

Textualism is a theory of the way judges ought to interpret legal documents, like statutes and the Constitution. Scalia uses the theory to support a number of highly consequential and controversial propositions. He believes that judges who interpret statutes should avoid all reference to legislative history. And he also believes that judges should interpret the Constitution strictly according to the original meaning of its language.

Although Scalia was well known for his textualism at the time of his appointment, A Matter of Interpretation: Federal Courts and the Law sets forth a concise defense of the theory, considered now from the mature perspective of a seasoned and powerful justice. The book consists of the Tanner Lectures which Scalia delivered at Princeton University in 1995, along with commentary on the lectures by Gordon Wood, Laurence Tribe, Mary Ann Glendon, and Ronald Dworkin, as well as Scalia’s response.

Most litigation in federal courts involves the interpretation of statutes. Yet, as two prominent law professors have put it, the “hard truth of the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation.” Uncertainty in the interpretation of legislation adversely affects not only lawyers and judges, but all those who seek to live by the laws. In A Matter of Interpretation Scalia is right to call for a vigorous reassessment of our practice of statutory interpretation. His book’s main contribution is to remind us that legal authority attaches to the text of a duly enacted statute, not to the unenacted intentions of legislators.

Questions of interpretation arise when the meaning of a statutory text is not clear. Scalia believes that the theory of textualism requires courts to determine statutory meaning by referring to ordinary language usage, to generally accepted rules of construing texts, and to other legislation that has been passed. The chief theoretical position that Scalia wants to defend in A Matter of Interpretation is that courts ought scrupulously to avoid referring to legislative history when they are attempting to understand an ambiguous statute. Legislative history consists of items such as committee reports, floor debates, and legislative drafts—all the available documents and statements that accumulated while a statute was being passed. Scalia writes: “I …

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