During his time on the Court, Justice Scalia has developed a uniquely personal approach to statutory interpretation, constituted by diverse aspects such as textualism, a rejection of legislative history, original public meaning, the use of dictionaries, a rejection of precedent, the rule of lenity, and so on. Over the years, individual aspects of his approach have been subjected to critical scrutiny. There has not yet, however, been an attempt to synthesize the various strands of his jurisprudence into one coherent framework, and to examine the normative foundations that underlie it. The need is particularly acute, because in 2012, Justice Scalia, along with Bryan Garner, published Reading Law, aimed at being a comprehensive account of the "correct" way to interpret statutes. In order to critique his account, we must first understand it holistically. This Article aims to do just that.
This Article argues that the roots of Justice Scalia's interpretive approach lie in political philosophy-specifically, in a normative vision of democracy, freedom, and the rule of law that was first developed by the philosopher Friedrich Hayek. This Article not only explains how each of the specific aspects of his interpretive approach fit and interlock with one another, but also explains how the seeming contradictions in his theory (for example, he repeatedly invokes democracy while ignoring the way Congress actually functions when legislating) are explicable within a more abstract, normative framework. This Article demonstrates that Justice Scalia's theory is coherent and intellectually defensible, but its ultimate justification lies in the realm of political values.
The goal of this Article, thus, is to shift the debate. Rather than critiquing individual aspects of Justice Scalia's theory like his selective use of dictionaries or his fixation on the rule of lenity, we would be better off interrogating his political and normative vision, because it is that which, ultimately, determines his concrete, interpretive approach. More broadly, a debate over statutory interpretation is, at the end of the day, a debate about political values. Understanding that is a first step towards a clearer understanding of statutory interpretation itself.
The Politics of Statutory Interpretation: The Hayekian Foundations of Justice Antonin Scalia's Jurisprudence,
42 Hastings Const. L.Q. 525
Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol42/iss3/2