Justice Scalia's Labor Jurisprudence – Justice Denied?

61 Pages Posted: 28 Aug 2017

See all articles by Anne Marie Lofaso

Anne Marie Lofaso

West Virginia University - College of Law

Date Written: August 14, 2017


The query – What is law? – is jurisprudence’s foundational inquiry. While legal academics are often fascinated with that subject, practicing lawyers rarely if ever ask themselves that question. Rather, they ask – what law is applicable to my client’s situation and how can I spin that law to my client’s favor. Legal positivists, as legal philosophers, come close to examining the question, what is law, in the way a practitioner might ask, what is the law. The main difference, however, is that the legal positivist would generalize the question and then tell the practitioner to search for the proper sources of law.

Justice Antonin Scalia was a caricature of legal positivism. For him, the law was a closed set comprised primarily of constitutional or legislative text, judicial interpretation of that text, and logical application of that text to disputes. Beyond those sources, Scalia appeared increasingly skeptical, giving legislative history and even agency interpretation of statutory text limited legal weight – at least regarding labor law jurisprudence. Scalia also adhered to an originalist school of thought, whereby constitutional interpretation should be confined to what the drafters intended. Scalia believed that close adherence to language as it was used at the time of legislative drafting coupled with logical thinking prevented the rule of men from overtaking the rule of law.

As chance would have it, Scalia (born on March 11, 1936) and the National Labor Relations Act (signed into law on July 5, 1935) came into being within nine months of each other. Using biographical details from and historical events during Scalia’s life, this article draws a picture of Scalia the man, hinting at influential sources and events in his life. The article allows the reader to draw inferences about the question – what is law – as he or she sojourns through Scalia’s life. The first part of the Article, Justice in the Making, brings the reader on a trip through time, specifically, the half-century between 1936 and 1986. That voyage, which begins with Scalia’s birth, summarizes the judicial development of labor law under the NLRA, using illustrative cases plucked during years significant in Scalia’s educational and professional development. The voyage ends with Scalia’s appointment to the bench, thereby bringing the reader right up to the point that Scalia is no longer a justice in the making but is making justice. The second part of the Article, Scalia’s Labor Law Legacy, discusses Scalia’s role in all nineteen NLRA cases decided during Scalia’s time on the High Bench. That part is divided into three sections. Section A, Separation of Powers and the Government’s Limited Authority to Act, reviews Scalia’s analysis of labor cases dealing with separation of powers and government authority issues. It concludes that Scalia tended to enlarge the role of the judicial branch at the expense of legislative and executive power. Section B, Chevron and the Court’s Relationship to the NLRB in Interpreting the NLRA, reviews Scalia’s application of Chevron deference in labor cases, concluding that Scalia tended to enlarge the Court’s interpretative role at the expense of agency interpretation. Section C, The Court’s Review of the Board’s Findings of Fact, reviews Scalia’s deference to the NLRB’s findings of fact, concluding that Scalia was quite comfortable undoing agency findings, notwithstanding that the substantial evidence test is primarily a tool of the courts of appeals used as a check on gross factual errors made by agencies. The article concludes by suggesting that, however influential one man may be on the law’s development, the law transcends people, and is greater than what the positivist suggests, even if that positivist is a larger-than-life justice named Antonin Scalia.

Suggested Citation

Lofaso, Anne Marie, Justice Scalia's Labor Jurisprudence – Justice Denied? (August 14, 2017). Employee Rights and Employment Policy Journal, Vol. 21, No. 13, 2017, Available at SSRN: https://ssrn.com/abstract=3025911

Anne Marie Lofaso (Contact Author)

West Virginia University - College of Law ( email )

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