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Justice ScaliaRhetoric and the Rule of Law$
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Brian G. Slocum and Francis J. Mootz III

Print publication date: 2019

Print ISBN-13: 9780226601656

Published to Chicago Scholarship Online: September 2019

DOI: 10.7208/chicago/9780226601793.001.0001

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Textualism without Formalism: Justice Scalia’s Statutory Interpretation Legacy

Textualism without Formalism: Justice Scalia’s Statutory Interpretation Legacy

(p.81) 6 Textualism without Formalism: Justice Scalia’s Statutory Interpretation Legacy
Justice Scalia

Abbe R. Gluck

University of Chicago Press

Justice Scalia’s most enduring legacy is likely to be the method of statutory interpretation—“textualism”—that he brought to the U.S. Supreme Court and to all of the courts below it. With his three-decades’ worth of relentless insistence on text-focused interpretation of statutes, Justice Scalia changed the way judges of all interpretive stripes approach that task, the process ingraining in the minds of many, for better or for worse, the notion that a purpose- or pragmatism-driven approach to statutory cases was not consistent with the judicial role. Underpinning this approach from the start was Justice Scalia’s proclaimed faith in formalism, and that statutory interpretation was amenable to it. But in the end, Justice Scalia was no interpretive formalist. The rules of statutory interpretation that he advanced are not predictable, or even fully listable. Even as Justice Scalia, more than anyone else, emphasized the importance of formalism in statutory interpretation, he either never really wanted it to succeed, or did not fully appreciate its implications. The chapter asks the following questions: What would it take to make statutory interpretation truly formalist? Why did Justice Scalia’s vision fall short?

Keywords:   statutory interpretation, textualism, jurisprudence, formalism, interpretive rules

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