Academic journal article Harvard Journal of Law & Public Policy

The Newer Textualism: Justice Alito's Statutory Interpretation

Academic journal article Harvard Journal of Law & Public Policy

The Newer Textualism: Justice Alito's Statutory Interpretation

Article excerpt


Despite his fifteen-year tenure as a judge on the U.S. Court of Appeals for the Third Circuit, Justice Samuel Alito remained something of a mystery when he was nominated to the Supreme Court in 2005. His lower court opinions were described as "reserved," much unlike the sometimes polemical screeds penned by other members of the bench. (1) Justice Alito's seemingly conservative views as an appellate judge prompted some commentators to compare him to Justice Antonin Scalia, (2) but these analysts made little headway in defining Justice Alito's legal methodology with any measure of precision. More than a year after his confirmation, legal scholars, the media, and the American public still have many questions about Justice Alito. This Note attempts to answer one of those questions: What is Justice Alito's method of statutory interpretation?

In 1990, Professor William Eskridge documented the rise of the "new textualism" that Justice Scalia brought to the Supreme Court upon his elevation in 1986. (3) The new textualism, Professor Eskridge explained, "posits that once the Court has ascertained a statute's plain meaning, consideration of legislative history becomes irrelevant." (4) This Note contends that, notwithstanding the frequent comparisons to Justice Scalia, Justice Alito brings a markedly different flavor of textualism to the Court. For him the text of the statute still reigns supreme, but legislative history can be used to establish the context in which the statute should be read. Just as Justice Scalia's new textualism has influenced the Court since the 1980s, (5) Justice Alito's "newer textualism" might very well make a similar impact on the Roberts Court.

One of Justice Alito's first opinions as a member of the Court serves as the catalyst for this theory. In Zedner v. United States, (6) Justice Alito used a federal statute's legislative history to confirm his interpretation of the unambiguous statutory text. (7) This move--unorthodox for many textualists--prompted a concurring opinion by Justice Scalia vigorously protesting the use of legislative history. (8) Part II of this Note analyzes Zedner, using the dueling opinions of Justices Scalia and Alito to showcase three frameworks through which one can view legislative history and to set the stage for this Note's thesis. Because textualism in practice often demands more than what textualism allows in theory, Part III.A surveys the core tenets of textualism, while Part III.B reviews one of Justice Alito's typical statutory cases from the Third Circuit and concludes that, at least in simple cases, Justice Alito exhibits textualist behavior.

Part IV explains and defends Justice Alito's newer textualism. Part IV.A describes Justice Alito's use of legislative history by comparing two of his Third Circuit cases; Part IV.B reconciles his use of legislative history in the chronologically-later case with the core tenets of textualist theory. That case serves as an example of the newer textualism. Part IV.C defends the newer textualism against Justice Scalia's critique of legislative history. Finally, Part IV.D then argues that Justice Alito's newer textualism is normatively superior to Justice Scalia's practice.

As a disclaimer, this Note does not attempt to demonstrate that textualism is superior to other methods of statutory interpretation. Nor is its analysis meant to serve as a comprehensive review of all of Justice Alito's opinions interpreting statutes. Additionally, this Note does not attempt to rationalize all of his opinions, nor does it contend that his opinions are invariably correct. Instead, this Note focuses on several opinions in which Justice Alito explicitly sets forth his interpretive method, and uses these opinions to help answer a question that many have posed since his nomination and confirmation: Who are you, Justice Alito?


The dueling opinions of Justices Scalia and Alito in Zedner set the stage for a comparative examination of their methods of statutory interpretation. …

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