February 15 2016
It is with heavy hearts that generations of conservative lawyers start back to work this week. The significance of the legacy left by Justice Antonin Scalia, who died on Saturday, on our courts, the lawyers who practice before them, and indeed, our country cannot be overstated.
As many have already said, Justice Scalia transformed the way we think about our Constitution. Justice Scalia believed that document should be interpreted according to the original intent of the Founders. Originalism asks not what an individual judge or justice thinks the answer should be, but rather, as a historical matter, what does the text of the Constitution reveal about the Founders’ intent. In stark contrast to Living Constitutionalism, this method of interpretation cabins the choices and preferences of unelected judges and thus is a powerful tool to combat judicial activism.
Justice Scalia believed that judges were neither equipped, nor given the constitutional authority, to make the countless decisions left by our Constitution to the political branches. And he was perhaps the most effective advocate for answering the most pressing constitutional questions of our day by examining what the Founders meant. For that, we will forever be in his debt.
A second legacy left by Justice Scalia is often overlooked in light of his powerful constitutional analysis. But it is no less important. Justice Scalia changed the way the courts approach work-a-day statutory interpretation. It was not so long ago when one could review a Supreme Court decision and find nary a reference to the particular words of the statute at issue! Things like purpose, workability, and policy held the keys to statutory interpretation. The courts asked how a particular statute was supposed to work rather than what Congress had actually said.
With his acerbic wit and powerful prose, Justice Scalia put the focus of statutory interpretation back on statutory text. In a Republic like ours, where Congress is to make the law and courts are to interpret it, Justice Scalia’s return to enacted language puts the federal courts back in the position intended by our Founding Fathers. This is one more reason to be thankful for his long service to our country.
As Justice Elena Kagan said upon his death, Justice Scalia’s “views on interpreting texts have changed the way all of us think and talk about the law.” This applies both to the Constitution and to statutes. We will miss him greatly.