Justice Scalia, in the end, was no interpretive formalist. He would not be pleased to hear this claim, but the fact is that formalism has not succeeded in statutory interpretation, and in fact, the textualism that Justice Scalia deserves so much credit for creating never really embraced formalism at all.
Textualism lacks all the conditions necessary for formalism. It does not have a defined set of predictable rules ordered to ensure objective application. Instead, we have more than one hundred interpretive presumptions—the presumptions favored by textualists—with no defined method of choosing among them. These doctrines of the field are not treated as precedent or even as law that a higher court or Congress is entitled to make. Instead, they occupy the unique status of being viewed as inherently personal to the individual judge, a status not shared by any other doctrines applied by Article III courts. The doctrines do not have a theorized jurisprudence that legitimates their source, ties them to a sovereign lawmaking power, or even indicates where the rules come from. Justice Scalia himself was never willing to admit that many canons—including ones he himself invented—are judicial creations, and hence, federal common law; to the contrary, he argued that treating them as common law might be unconstitutional.
Justice Scalia’s incomparable contributions to statutory interpretation deserve great recognition. But even though his successful effort to create the modern field was ostensibly grounded in the rule of law, he either never really wanted formalism to succeed, or did not fully appreciate its implications. What would it take to make statutory interpretation truly formalist? Why did Justice Scalia’s vision fall short? Answering these questions is essential to understanding his legacy, what textualism really is, and what he wanted it to be.
Abbe R. Gluck,
Justice Scalia's Unfinished Business in Statutory Interpretation: Where Textualism's Formalism Gave Up,
Notre Dame L. Rev.
Available at: http://scholarship.law.nd.edu/ndlr/vol92/iss5/7