The Scalia Revolution

Justice Antonin Scalia died ten years ago today, and he left an extraordinary legacy to the American people. Justice Scalia single-handedly revived legal formalism and textualism, which had been dead in the legal world since the Legal Realist Revolution of the 1920’s.

Justice Scalia’s revival of textualism and rejection of legislative history and original intent remains dominant today on the Supreme Court and in the lower federal courts, and it is increasingly important in legal academic writing. Justice Scalia taught all of us that words matter and that it is the original public meaning of a text which is the law, and not the intentions of those who wrote it.

In championing formalism and textualism, Scalia built on Attorney General Ed Meese’s emphasis on originalist history, and Judge Robert H. Bork’s insistence on the rule of law as a constraint on judges. Each of these three great men revolutionized American constitutional law and the law of statutory interpretation in their own distinctive way.

But the job of harmonizing his own textualism with Meese’s emphasis on history and Bork’s emphasis on the rule of law for judges fell to Justice Scalia because he was the one of these three men who was on the Supreme Court from September 26, 1986, until his death on February 13, 2016. Scalia, through his sheer brilliance, the force of his personality, and the energy and passion that he poured into doing his job as a Supreme Court justice transformed American law.

U.S. Supreme Court opinions in 2026 are far more formalist, more textualist, more historical, and more conscious of the rule of law because of Justice Scalia. All nine of the current justices have been profoundly shaped by Scalia’s legacy even if only two of the justices, Clarence Thomas and Neil Gorsuch, view themselves as always being bound by the original public meaning of texts. Justice Thomas, but not yet Justice Gorsuch, has said essentially that he never feels bound by precedent. Justice Scalia did follow longstanding precedents that were non-originalist, but which were deeply rooted in American history and tradition.

Justice Scalia, like Justice Oliver Wendell Holmes before him, wrote dissents that have become today’s majority opinions. Dobbs v. Jackson Women’s Health Organization (2022) finally heeded Scalia’s call for the overruling of Roe v. Wade (1973). Scalia’s passionate demand that we leave abortion law up to the people of the fifty states won out because of his many powerful dissents, especially in Planned Parenthood v. Casey (1992).

Racial preferences and opposition to affirmative action were frequent topics of Scalia’s other dissents. Thanks to Students for Fair Admissions v. Harvard (2023), and to the Herculean efforts of the Trump Administration, racial preferences are being torn up root and branch all over the country.

The Roberts Court, with huge help from President Trump, may be on the verge of getting rid of Humphrey’s Executor (1935) and the headless fourth branch of the government. If the Supreme Court so rules, it will be in part because of Scalia’s powerful dissent in Morrison v. Olson (1988), which was surely one of the most unsound Supreme Court majority opinions of all time.

When Justice Scalia died on February 13, 2016, his death galvanized the whole country’s political system. President Barack Obama nominated a feckless man, Judge and future Attorney General, Merrick Garland, to replace Justice Scalia. Senate Majority Leader Mitch McConnell, in the most consequential act of his long career, kept Scalia’s seat open to be filled by the new president who would be elected in 2016.

American voters on election day 2016 knew that they were choosing between Hillary Clinton and Donald Trump to fill the crucial Scalia seat on the Supreme Court, and voters in the key Electoral College battleground states chose Trump. Public opinion polls of the 2016 electorate showed that of those voters for whom choosing a Supreme Court Justice was their top issue, 57% voted for Donald Trump and 43% voted for Hillary Clinton.

Justice Scalia’s replacement was such a political earthquake with the American people that it may have changed the outcome of a presidential election and produced a Supreme Court with six good Republican-appointed justices on it. I cannot think of another instance in 237 years of American history where there was a good chance that the death of a Supreme Court justice changed the outcome of a presidential election.

As wonderful as today’s Supreme Court is, it must be acknowledged that none of the nine current justices are public intellectuals like Scalia. None of them tour every top left-wing law school, and ninety countries all over the world, preaching the Gospel of original public meaning textualism.

As a result of this gap, some like former Scalia law clerk Adrian Vermeule have taken to challenging originalism and urging for right-wing judicial activism now that conservatives have the votes. Justice Scalia would have been appalled, but not surprised, that heresies like this would appear, and he would have done everything in his power to stamp them out.

Whoever you are and whatever you are doing today, dear reader, please pause for a second to reflect for a moment on the brilliant life and legacy of Justice Antonin Scalia. God made only one man like that, and it was our great privilege to share this earth with him for a time.