Scalia's Law

In October 1985 -- not quite a year before Antonin Scalia took his seat on the U.S. Supreme Court -- the California Law Review published a paper by Fred R. Shapiro called “The Most-Cited Law Review Articles.” Nothing by Scalia was mentioned, and no surprise. He had published a bit of legal scholarship, of course (including a paper in The Supreme Court Review in 1978) but overall his paper trail was fairly thin and unexceptional, which proved a definite advantage in getting the nominee through the Senate hearings without drama.

As for Shapiro's article, it reflected the arrival of a new quantification mind-set about assessing legal scholarship. Culling data concerning some 180 journals, Shapiro (now an associate librarian and lecturer in legal research at the Yale Law School) tabulated and ranked the 50 most influential law review articles published between 1947 and 1985. Or, at least, the 50 most often cited in other law review articles, since he did not count citations in judicial opinions or interdisciplinary journals. At the time, Shapiro described the effort as “somewhere between historiography and parlor game,” but it established him as, in the words of a later law review article, “the founding father of a new and peculiar discipline: ‘legal citology.’”

Shapiro revisited the project in 1996 with a paper that was broader in scope (it included the interdisciplinary “law and ____” journals) and also more fine grained, listing the top 100 “Most-Cited Law Review Articles of All Time” but also identifying the most-cited articles published in each year between 1982 and 1991. The second time around, he stressed the historiographic significance of his findings over any parlor-game aspect. “The great legal iconoclast and footnote-hater, Fred Rodell, missed the point,” wrote Shapiro. “Yes, footnotes are abominations destroying the readability of legal writing, but they proliferate and become discursive because they are where the action is.”

In the meantime, Scalia gave a lecture at Harvard University in early 1989 that appeared in the fall in the University of Chicago Law Review. It had a definite impact. By 1996, Shapiro included Scalia’s “The Rule of Law as a Law of Rules” in the list of the most-cited articles from 1989. It was in fourth place -- flanked, a bit incongruously, by Richard Delgado’s “Storytelling for Oppositionists and Others: A Plea for Narrative” (third) and Joan C. Williams’s “Deconstructing Gender” (fifth). Updating the study once more in 2012, Shapiro and his co-author Michelle Pearse placed Scalia’s “The Rule of Law as a Law of Rules” on its list of the most-cited law-review articles of all time, at number 36. By then, Delgado’s paper was in 68th place, while Williams was not on the list at all.

So much for the late justice’s place in the annals of legal citology. (Wouldn’t it make more sense to call this sort of thing “citistics”?) Turning to “The Rule of Law as a Law of Rules” itself, it soon becomes clear that its impact derives at least as much from the author's name as from the force of Scalia's argument. If written by someone not sitting in the highest court in the land, it would probably have joined countless other papers of its era in the usual uncited oblivion. That said, it is also easy to see why the paper has been of long-term interest, since it is a succinct, lucid and remarkably uncombative statement of basic principles by the figure responsible for some of the Supreme Court’s most vigorous and pungent dissents.

Scalia takes his bearings from a dichotomy he finds expressed in Aristotle’s Politics: “Rightly constituted laws should be the final sovereign; and personal rule, whether it be exercised by a single person or a body of persons, should be sovereign only in those matters on which law is unable, owing to the difficulty of framing general rules for all contingencies, to make an exact pronouncement.”

Scalia assumes here that the reader or listener will know that Aristotle writes this in the context of a discussion of democracy, in which laws are created by those elected to “the court, and the senate, and the assembly” by the many, in keeping with a well-made constitution (rather than issued by monarchs, priests or tyrants). Official policy and decisions must, in turn, follow the body of established and “rightly constituted law.” Anything else would amount to an usurpation of power.

Aristotle’s point would apply to anyone in office, but Scalia is concerned with the authority of judges, in particular. For their part, upholding the law means restraint in determining how it is applied: judges should keep the exercise of their own discretion as minimal as possible. Aristotle allows, and Scalia concurs, that at times it is not clear just how a law ought to be applied. In that case a judge’s decision must be made “on the basis of what we have come to call the ‘totality of the circumstances’ test,” in Scalia’s words.

Sometimes it can't be helped, but Scalia implies that curbs are necessary, lest judges feel an incentive to discover gray areas requiring them to exercise their discretion. “To reach such a stage,” he writes, “is, in a way, a regrettable concession of defeat -- an acknowledgment that we have passed the point where ‘law,’ properly speaking, has any further application.” It is “effectively to conclude that uniformity is not a particularly important objective with respect to the legal question at issue.” And when a higher court reviews a lower one’s decision, Scalia treats appealing to the totality of circumstances as even less acceptable. An appellate decision should draw out and clarify the general principles embodied in the law that apply in the particular case.

“It is perhaps easier for me than it is for some judges to develop general rules,” Scalia writes, “because I am more inclined to adhere closely to the plain meaning of a text.”

What's striking about his formulation is not that Scalia takes a position in the debate between originalism and “living Constitution”-alism, but that he spells out an important assumption. Not only is the “plain meaning” of a law clearly decipherable from the words of its text (once we’ve looked up, if necessary, any unfamiliar expressions from the era when it was written) but so are the rules for determining its principles and for applying the law. The Constitution is like a cake mix with the instructions right there on the box. And if a given concept is not used or defined there --“privacy,” for instance, to name one that Scalia regarded as unconstitutional, or at least nonconstitutional -- then its use is ruled out.

“If a barn was not considered the curtilage of a house in 1791 or 1868,” Scalia writes, “and the Fourth Amendment did not cover it then, unlawful entry into a barn today may be a trespass, but not an unconstitutional search and seizure. It is more difficult, it seems to me, to derive such a categorical general rule from evolving notions of personal privacy.”

The distinction is clear and sharply drawn, however blunt the hermeneutic knife Scalia is wielding. But the example also displays one of the great weaknesses of this approach, spelled out by David A. Strauss in the University of Chicago Law Review some years later: “Even if one can determine what the original understanding was, there is the problem of applying it to radically new conditions: Is a barn in the rural nation of 1791 to be treated as equivalent to, say, a garden shed in 21st-century exurbia?”

Furthermore, the clearly formulated principle in a law can be rendered null and void by those who want only the narrowest construction of “original intent.” In his magnum opus, Reading Law: The Interpretation of Legal Texts (2012), co-authored with Bryan A. Garner, Scalia quoted Joseph Story’s Commentaries on the Constitution of the United States (1833) on the value of preambles in understanding the significance and intended effect of a law: “The preamble of a statute is a key to open the mind of the makers, as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute.” As fellow Reagan judicial appointee Richard A. Posner pointed out when he reviewed Reading Law, an obvious instance would be the Second Amendment: “A well regulated Militia, being necessary to the security of a free State …” The preamble spells out that the amendment is, in Posner’s words “not about personal self-defense, but about forbidding the federal government to disarm state militias.” If it matters that the Constitution never explicitly identifies a right to privacy, then the complete lack of any reference to a right to individual gun ownership seems at least as conspicuous a silence.

Posner notes that when Scalia did mention the preamble in one decision, it was dismissive. Sometimes you “adhere closely to the plain meaning of a text,” it seems, and sometimes you just wish it would go away.

The skyrocket ascent of Scalia’s paper is easy to understand: whatever you think of the ideas, they are clearly and at times forcefully expressed, and “The Rule of Law as a Law of Rules” provided a glimpse into at least part of that enigmatic entity known as “the mind of the Supreme Court.” Absent that, its interest is likely to be chiefly historical or biographical. Other cards will take its place in the parlor game of citation and influence.