Scalia Must Be Turning In His Grave

Justice Antonin Scalia’s three-decade tenure on the Supreme Court left very little imprint on the law in terms of majority opinions that bear his name. His admirers point to the influence of his insistence on originalism in constitutional interpretation and textualism for statutes when they discuss his legacy, but two years after his passing, textualism seems to be as dead he is. Writing in The New York Times, Linda Greenhouse explains that Scalia’s antipathy toward legislative history, combined with his powerful and often scathing opinions castigating his colleagues and lower courts for considering a law’s history when they interpreted it, influenced the way lawyers framed and argued their cases, and the way lower courts approached their statutory work. During the Scalia era, useful clues to legislative meaning were usually ignored, even though very few lower-court judges were ever as rigid as Scalia in their approach to statutory interpretation. But now both the lower courts and Scalia’s former colleagues freely invoke legislative history, including committee reports and floor debates, when they consider what a statute means.