Textualism after Antonin Scalia: tribute to the late great justice.

• Author: Pryor, William H., Jr.
• Position: Symposium: The Role of the Judge in the Anglo-American Tradition

This year, we lost one of the greatest jurists ever to sit on the Supreme Court of the United States. In his thirty years as an associate justice, Antonin Scalia profoundly changed the way that Americans think and communicate about law. President Reagan appointed Justice Scalia to the Supreme Court in 1986, a year before I graduated from law school, and Justice Scalia immediately became--and remained--the intellectual leader of lawyers and judges devoted to formalism in the Anglo-American legal tradition. (1) Justice Scalia especially influenced me and the way I understand the Constitution, the laws of the United States, and my role as a federal circuit judge.

At this symposium on the role of the judge in the Anglo-American tradition, it is more than fitting--indeed, essential--that we praise and reflect upon Justice Scalia's legacy. I want to do so by first providing a brief overview of Justice Scalia's devotion to the rule of law and his legacy in constitutional and statutory interpretation where he was a powerful advocate for originalism and for textualism. I will then discuss Justice Scalia's methodology by considering how he might have voted in the first case of statutory interpretation decided by the Supreme Court after his death, Lockhart v. United States, (2) and what it tells us about the future of textualism.

1. JUSTICE SCALIA'S LEGACY IN CONSTITUTIONAL AND STATUTORY INTERPRETATION

   The best known example of the kind of change that Justice Scalia wrought, of course, involves constitutional interpretation. Justice Scalia consistently maintained that courts should interpret the Constitution based on the original meaning of its text, (3) and in several key cases, he persuaded the Supreme Court to adopt that methodology. He did so perhaps most famously in District of Columbia v. Heller,, (4) where he wrote the majority opinion affirming that the Second Amendment protects an individual's right to bear arms and where Justice Stevens's dissenting opinion responded in originalist terms. But Justice Scalia's originalist decisions regularly surprised cynics who wrongly view constitutional interpretation as driven by politics.

   Perhaps the best example of Justice Scalia's neutral methodology is his 2004 majority opinion in Crawford v. Washington, (5) which affirmed the right of an accused, under the Sixth Amendment, to be confronted with any witnesses against him in a criminal trial. Justice Scalia's opinion exhaustively reviewed the evidence from the Founding era about the original meaning of the right to confrontation. (6) His opinion concluded that "the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." (7) He then turned to the text of the Sixth Amendment and the original meaning of the term "witnesses"--or "those who 'bear testimony"'--as defined by Noah Webster in 1828. (8) He concluded that the Sixth Amendment barred the admission of testimonial statements by out-of-court declarants whom the accused had not had the opportunity to cross-examine. (9) Justice Scalia's opinion in favor of a criminal defendant convicted of assault with a deadly weapon defied any political label as "conservative" or "liberal:" Justices Stevens, Kennedy, Souter, Thomas, Ginsburg, and Breyer joined it. Only Chief Justice Rehnquist, joined by Justice O'Connor, concurred on separate grounds that eschewed Justice Scalia's originalist approach. (10) Justice Scalia's opinion discarded a previously used "balancing test" that was "amorphous" and "subjective." (11) Instead, his opinion rested on the text and original meaning of the Sixth Amendment.

   Crawford was not an outlier in his methodology: Justice Scalia frequently championed the constitutional rights of the accused based on the original meaning of the Fourth, Fifth, and Sixth Amendments. In United States v. Jones, (12) Justice Scalia wrote the majority opinion holding that agents conducted a warrantless "search" when they used a global positioning system to track the movements of a suspect's automobile. In Kyllo v. United States, (13) he wrote the majority opinion holding that federal agents violated the prohibition of unreasonable searches when they used thermal imaging of a man's home to detect heat lamps for growing marijuana. And he joined the landmark opinion in Apprendi v. New Jersey (14) that required prosecutors to charge and prove to juries beyond a reasonable doubt facts that would increase defendants' punishments for crimes. When the Supreme Court applied Apprendi to invalidate mandatory sentencing guidelines in Blakely v. Washington, (15) Justice Scalia wrote the majority opinion.

   Justice Scalia displayed the same devotion to principle in other areas of constitutional law. As to the structural restraint of federalism, Justice Scalia, for example, wrote the majority opinion in Printz v. United States, (16) which ruled that Congress lacked the power to require state officials to perform background checks of purchasers of firearms. And he dissented when the Supreme Court ruled that a punitive damages award by an Alabama jury against an automobile manufacturer violated the judicially-created doctrine of substantive due process. (17) As to the free exercise of religion, Justice Scalia wrote the majority opinion in Employment Division v. Smith, (18) which held that Oregon could ban the use of peyote, even for sacramental purposes. (19) Bipartisan opposition to the decision in Smith led Congress to pass the Religious Freedom Restoration Act, (20) but respected legal scholars defended Justice Scalia's opinion as a correct reading of the original meaning of the free exercise clause. (21) And, as to the right to free speech, Justice Scalia provided the fifth vote in favor of the right to burn the American flag as a form of political protest. (22)

   On at least one occasion, legal scholars, elected officials, and opinion leaders eventually acknowledged that a lone dissenting opinion by Justice Scalia had been prophetic. (23) That acknowledgement occurred many years after the Supreme Court decided Morrison v. Olson, (24) which, over Justice Scalia's dissent, upheld the Independent Counsel Act. (25) A decade later, the Nation endured the ugly spectacle of the impeachment and trial of President Bill Clinton, who had been investigated by an independent counsel. In 1999, Congress then quietly let that law expire. Justice Scalia lost the battle in Morrison, but he won the war in the court of public opinion.

   It never hurt that Justice Scalia was, by all accounts, a gifted writer. We will not soon forget his dissent in King v. Burwell, (26) mocking the majority opinion, which preserved regulations for the Affordable Care Act, as "interpretive jiggery-pokery." (27) In Morrison, when referring to the independent counsel law and contrasting it with issues dressed "in sheep's clothing," Justice Scalia wrote, "this wolf comes as a wolf." (28) And in Lamb's Chapel, (29) when he decried a judicial test for violations of the Establishment Clause, Justice Scalia wrote, "Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys." (30)

   One of Justice Scalia's most enduring legacies involved curtailing an obscure perversion of statutory interpretation called "implied rights of action." Before Justice Scalia arrived there, the Supreme Court frequently "interpreted" federal statutes to create private causes of action by implication, (31) which is another way of saying that Congress did not create private causes of action when it enacted those statutes. Justice Scalia reversed that trend. And I enjoyed the benefit of Justice Scalia's influence while I served as Attorney General of Alabama when he wrote the majority opinion in Alexander v. Sandoval, (32) which ended a federal lawsuit against the Alabama Department of Public Safety for its refusal to administer drivers' license tests in foreign languages. Justice Scalia agreed with our argument that Congress had not empowered private litigants to sue state agencies that receive federal funds for their alleged failure to comply with federal regulations. (33)

   Perhaps because Justice Scalia loved both the English language and our Anglo-American legal tradition, it should not be surprising that his greatest achievement was to make us think rigorously about the interpretation of written laws, particularly statutes. But don't just take my word for it: a few months before Justice Scalia passed away, Justice Elena Kagan gave the Scalia Lecture at Harvard Law School and declared that because of Justice Scalia's influence, "We're all textualists now." (34) Several months after Justice Scalia died, Justice Kagan expounded on this point at the University of Arizona: "I think his truly long-lasting legacy is in the area of statutory interpretation, where he changed the way everybody does statutory interpretation. It's not just that he had his own distinctive method of interpretation. He really just moved the whole field." (35) And she credited Justice Scalia especially for changing the way the Supreme Court interprets statutes: "[I]f you look at cases from the '70s and the '80s, before he got on the court, and you look at the way we do interpretation now, it is like night and day in terms of the way we treat legislative history, in terms of...