The late Justice Antonin Scalia reshaped statutory interpretation. Thanks to him, the Supreme Court has become far more textualist. Nonetheless, Justice Scalia never persuaded the Court to adopt his textualist ideal that “the text is the law.” In some cases, the Court still gives greater weight to other indicators of statutory meaning, such as perceived statutory purpose. Fundamental institutional features of courts and legislatures — particularly the fact that legislatures act generally and in advance, whereas courts resolve particular questions at the moment a statute is applied — justify this rejection of the textualist ideal.
GW Paper Series
GWU Law School Public Law Research Paper No. 2017-78; GWU Legal Studies Research Paper No. 2017-78
Siegel, Jonathan R., The Legacy of Justice Scalia and His Textualist Ideal (May 2017). 85 Geo. Wash. L. Rev. 857 (2017); GWU Law School Public Law Research Paper No. 2017-78; GWU Legal Studies Research Paper No. 2017-78. Available at SSRN: https://ssrn.com/abstract=3068880