Justice Scalia and Judicial Theory

1) Justice Scalia spends relatively little space in his book detailing how he would implement his philosophy of statutory and

constitutional interpretation. Presumably he (and his colleagues) would keep deciding cases the way Scalia now does. Scalia acknowledges Professor Wood's point that the methods of interpretation in current use are deeply embedded in American history. However, he adds that "acknowledging evil is one thing, and embracing it is something else" (p. 131). Scalia does not consider judicial lawmaking merely as a peripheral problem, but rather "a question utterly central to the existence if democratic government" (p. 133). In effect, he is arguing that eradicating current practice is so important that whatever problems are inherent in implementing his solution, they are worth the cost and are less costly than continuing along the present path.

He offers, however, several suggestions for easing the problems of implementation. He recognizes and would apply stare decisis, the applicability of past court precedents, as necessary for legal stability (pp. 7-9; and p. 140). He also would use traditional canons of statutory interpretation and presumptions when they make sense to him and are not artificial rules (pp. 26 and 28). He goes out of his way to reassure the reader that he is not an extremist --e.g "while the good textualist is not a literalist, neither is he a nihilist" (p. 24). Although he would search for the original meaning given to a

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story professor and not a lawyer, judge or constitutional law scholar, he explains that he has not challenged or confirmed the validity of Scalia's views on statutory interpretation. Instead, he summarizes the historical role of Anglo-American judges in that area. His central point is that much of Scalia's approach runs counter to, and is inconsistent with, that history. He said that there have been political leaders such as Thomas Jefferson who agreed with Scalia and sought to make a judge "a mere machine;" however, since statutes were often poorly drafted in colonial times, a need existed for the exercise of judicial discretion (p. 49). b. Wood questions Scalia's argument that the doctrine of separation of powers really weakened the power of judges. He also pointed out that in colonial times distinctions between the courts and other branches of government were more blurred than Scalia indicates. He says colonial judges often acted as though they were an appendage of the royal executive and legislatures did not shrink from taking on quasi-judicial functions. c. Moreover, "the part of government that benefited most from the rethinking and remodeling of the 1780s was the judiciary" (p. 52). Judges "as the agents of the soverei

Category: Government - J