Justice Scalia's Originalism and Formalism: The Rule of Criminal Law as a Law of Rules

10 Pages Posted: 2 Sep 2016

See all articles by Stephanos Bibas

Stephanos Bibas

University of Pennsylvania Law School

Date Written: August 30, 2016


Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative history or policy.

Justice Scalia’s approach was perhaps most striking and counterintuitive in criminal law and procedure. He was known to confess that as a policy matter, he favored vigorous law enforcement and punishment, but as a jurist, he championed a principled understanding of the rule of law. His approach helped to preserve individual liberty, make the law clearer and more consistent and transparent, give citizens better notice, promote democratic accountability, and check prosecutors’ and judges’ power.

Justice Scalia’s animating concerns will remain enduring touchstones of our law: the importance of protecting the roles of legislatures, juries, and the people; ensuring fair notice; and preserving liberty by limiting judicial discretion and prosecutorial power. His criminal jurisprudence is thus a microcosm of a principled judicial approach to law more generally, and he will be greatly missed.

Keywords: Supreme Court of the United States, SCOTUS, Justice Antonin Scalia, Jurisprudence, Constitutional Law, Fourth Amendment, Sixth Amendment, Eighth Amendment, Legal Theory, Methodology, Interpretation, Confrontation Clause, Jury Trials, Search and Seizure, Death Penalty, Lenity, Notice, Rule of Law

Suggested Citation

Bibas, Stephanos, Justice Scalia's Originalism and Formalism: The Rule of Criminal Law as a Law of Rules (August 30, 2016). Special Report No. 186, Aug 2016, U of Penn Law School, Public Law Research Paper No. 16-32, Available at SSRN: https://ssrn.com/abstract=2833466

Stephanos Bibas (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-746-2297 (Phone)

HOME PAGE: http://www.law.upenn.edu/cf/faculty/sbibas/

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics