Antonin Scalia's Jurisprudence
Text and Tradition
With a New Afterword
Sales Date: December 12, 2016
366 Pages, 6.00 x 9.00 in
- Published: December 2016
- Published: March 2016
Lionized by the right and demonized by the left, Supreme Court Justice Antonin Scalia is the high court's quintessential conservative. Witty, outspoken, often abrasive, he is widely regarded as the most controversial member of the Court.
This book is the first comprehensive, reasoned, and sympathetic analysis of how Scalia has decided cases during his entire twenty-year Supreme Court tenure. Ralph Rossum focuses on Scalia’s more than 600 Supreme Court opinions and dissents—carefully wrought, passionately argued, and filled with well-turned phrases—which portray him as an eloquent defender of an “original meaning” jurisprudence. He also includes analyses of Scalia’s Court of Appeals opinions for the D.C. circuit, his major law review articles as a law professor and judge, and his provocative book, A Matter of Interpretation.
Rossum reveals Scalia’s understanding of key issues confronting today’s Court, such as the separation of powers, federalism, the free speech and press and religion clauses of the First Amendment, and the due process and equal protection clauses of the Fourteenth Amendment. He suggests that Scalia displays such a keen interest in defending federalism that he sometimes departs from text and tradition, and reveals that he has disagreed with other justices most often in decisions involving the meaning of the First Amendment’s establishment clause. He also analyzes Scalia’s positions on the commerce clause and habeas corpus clause of Article I, the take care clause of Article II, the criminal procedural provisions of Amendments Four through Eight, protection of state sovereign immunity in the Eleventh Amendment, and Congress’s enforcement power under Section 5 of the Fourteenth Amendment.
The first book to fully articulate the contours of Scalia’s constitutional philosophy and jurisprudence, Rossum’s insightful study ultimately depicts Scalia as a principled, consistent, and intelligent textualist who is fearless and resolute, notwithstanding the controversy he often inspires.
"Rossum captures the qualities that have made Justice Scalia’s ideas such a formidable and, to some, terrifying force. . . . [He] takes pains to show that Justice Scalia’s jurisprudence is not simply a cover for conservative ideology. . . . Rossum is no hagiographer—he is critical of all lapses from textual fidelity—but he is certainly respectful of Justice Scalia’s judicial career. He notes insightfully that the most important opinion Justice Scalia wrote in defense of federalism, in 1997, actually reflected his concern with preserving the separation of powers. . . . [a] cogent analysis . . . "—Wall Street Journal
"Both those who hate him and those who love him will inevitably learn more about Justice Scalia and his commitment to text and tradition in interpretation than they ever knew before. This is genuinely scholarly constitutional history, of an old-fashioned and rewarding sort."—Times Literary Supplement
"Rossum’s presentation is slanted but still helpful in its exploration of the use of textualism by a key member of the Supreme Court. Recommended for law, academic, and large public libraries."—Library Journal
“In this masterful study, Rossum not only elucidates Scalia’s theory of textualism and originalism, but shows how it plays out in a wide range of situations. Makes a persuasive case that Scalia's influence—like that of other great dissenters—may well reach its height among the next generation of lawyers.”—Mary Ann Glendon, author of The Transformation of Family Law
“An insightful examination that captures the intellectual flair that Justice Scalia brings to his interpretive quest.”—Kenneth W. Starr, author of First Among Equals: The Supreme Court in American Life
“Far and away the best description of Scalia’s jurisprudence.”—R. Shep Melnick, author of Between the Lines: Interpreting Welfare Rights
2. “Text and Tradition”: Scalia’s Understanding of the Interpretative Enterprise
3. Constitutional Structure and Separation of Powers
4. Constitutional Structure and Federalism
5. Scalia’s Textualism Applied to Substantive Rights
6. Scalia’s Textualism Applied to Procedural Rights
7. The Impact of Scalia’s Textualism on His Colleagues
Appendix. Cases in Which Justice Scalia Has Cited Dictionaries