No Vehicles on Mars

When assessing Justice Scalia through the lens of rhetoric, which, unlike logic or dialectic, seeks effectiveness rather than truth or completeness, his impact is manifest. One definition of rhetoric is that it is involves “the creation of discourse which changes reality through the mediation of thought and action” (Tildale 2004: 19). Undoubtedly, Justice Scalia altered reality, and it was his rhetorical skill in expounding a particular conception of the rule of law and corresponding methodology of interpretation that helped him do so. He is widely regarded as one of the most influential Supreme Court justices of the last several decades due in large part to his effective advocacy of textualism in statutory interpretation and originalism in constitutional interpretation. It may be true, as some critics claim, that Justice Scalia’s direct influence on the Supreme Court’s rulings was relatively modest, as he was unable to influence the voting of his colleagues in various important cases (Greene 2016). The influence of Justice Scalia’s theory of legal interpretation, though, is an entirely different matter. Justice Scalia’s influence on the rhetoric and methodology of legal interpretation can be measured in various ways, such as the increase in the Supreme Court’s citation of dictionaries (a practice strongly advocated by Justice Scalia) after Justice Scalia’s appointment to the Court in 1986. Justice Scalia’s advocacy of his theory of interpretation, textualism (which he may not have created but was its most famous advocate), was thus undoubtedly effective in various ways. Notwithstanding his enduring legacy, Justice Scalia’s need to define the rule of law and interpretation in dichotomous terms ultimately undermined his project and, ironically for someone who fetishized language, revealed a poor understanding of language itself. This chapter briefly describes Justice Scalia’s view of the rule of law and his argument that only textualism is consistent with rule of law requirements. The chapter also critiques Justice Scalia’s attempts to create “communion” with his critics by emphasizing the contextual nature of language and the necessity of judicial “judgment” when engaging in interpretation. The chapter argues that Justice Scalia’s attempts to show that his “fair reading” approach would narrow the range of acceptable judicial decision-making and acceptable argumentation fail, as does his demonstration of a textualist approach to H.L.A. Hart’s famous no-vehicles-in-the-park hypothetical. The chapter concludes that Justice Scalia’s arguments rest on fictional notions of language that, unlike other fictions and constructs, are unnecessary and undermine the goal of ingenuous legal interpretation.