Appointed to the Supreme Court in 1986 by President Reagan, Justice Antonin Scalia redefined the philosophy of textualism. Although methods like the plain meaning rule had been around for over a century, the textualist philosophy of today was not mainstream. While Scalia’s textualism is thought to be a conservative philosophy, Scalia consistently maintained that it was judicial restraint rather than conservatism at the heart of his method. The key tenant of Scalia’s new textualism was an outright rejection of legislative history, which he often brought up in opinions only to mock and dismiss as irrelevant. Starting with the hypothesis that Scalia’s textualism is alive and well, being used more frequently since his passing than the four years prior, this Article seeks to measure the lasting impact of his philosophy in the federal appellate courts. In particular, this paper measures how often courts of appeals cited to legislative history in the years before Scalia’s passing and how often they have in the years since. The Article also seeks to measure the correlation between textualism and the political right-wing by sorting citations to legislative history by appointing President over the past three years. The tested hypothesis is that Bush and Clinton appointees are likely to be more moderate, citing legislative history more frequently than Trump and Reagan appointees, but far less frequently than Obama appointees. Using a dataset that includes all published federal appellate court opinions between June 1, 2011, and November 30, 2020, for the first hypothesis the data revealed that Scalia’s new textualism is being used more frequently in the period after his death than in the period before. Of the thirteen federal circuits, eleven made fewer citations in the period after Scalia’s passing. For the second hypothesis, counting all published federal appellate opinions between December 1, 2017, and November 30, 2020, the data show that judges appointed by Republican presidents are far less likely to cite legislative history than Democrat appointees. As expected, judges appointed by President Trump were the least likely to cite to legislative history, but appointees of President Clinton and not President Obama were the most likely to cite to legislative history. Even if textualism may not reliably produce conservative outcomes, it does seem as though the conventional wisdom associating textualism with the Republican party is well-founded.
Textualism Today: Scalia’s Legacy and His Lasting Philosophy,
76 U. MIA L. Rev.
Available at: https://repository.law.miami.edu/umlr/vol76/iss3/7