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The battle over Justice Antonin Scalia’s approach to interpreting federal statutes shows no signs of abating even two years after his death, as a pair of opinions issued Wednesday by Justice Sonia Sotomayor, a concurring opinion by Justice Clarence Thomas and a surprising concurring vote of Justice Samuel Alito show.

Scalia’s most lasting influence on the Supreme Court is likely to be “textualism,” an approach to deciding the meaning of statutes by relying upon the words of the statutory text as a reader at the time of the statute’s enactment would have understood them. Scalia would frequently turn to dictionary or “canons” of construction (rules of thumb for deciding cases, such as interpreting criminal law statutes leniently to help defendants) as an aid to construction. What he would almost never do is consult legislative history (such as the statement of a senator on the floor of the Senate or a House of Representatives committee report accompanying legislation) to understand the statute’s meaning. He thought such legislative history was unreliable, manipulable and not the law passed by Congress.

As I detail in my upcoming book, “The Justice of Contradictions: Antonin Scalia and the Politics of Disruption,” Scalia was not always consistent in how he applied textualism and, more importantly, by reducing the meaning of statutes to word play, the justice often practiced more of a “parlor game” than he pursued a fair reading of the statute when viewed in the context in which Congress passed it.

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