Scalia’s Afterlife in Supreme Court Briefing

For a justice that has not served on the Court in a decade, Scalia's presence is still felt in the Court's writings. This article looks at how that has permeated parties' merits briefs.

When Joan Biskupic recently wrote that Justice Antonin Scalia’s influence is now “everywhere,” she was describing more than a change in vote counts. Her account focused on something deeper, specifically the normalization of originalism and textualism as the Court’s interpretive baseline. Once a theory that Scalia joked would not hit an originalist in faculty lounge even if fired with “cannon loaded with grapeshot”, originalism now structures how litigants and justices alike frame disputes about constitutional and statutory meaning.

The cultural claim is familiar. But what does “everywhere” look like inside a merits brief?

This article looks at the 115 parties’ merits briefs since the beginning of the 2024 calendar year that cite Scalia (focusing only on briefs that mention or cite him by name) suggests a more specific picture. His name appears frequently—but typically in small, targeted ways. Most often, he is invoked as interpretive infrastructure: authority for text-first reasoning and familiar canons. In a narrower but consequential set of cases, he serves as doctrinal architecture, supplying limiting principles in disputes about executive power, jurisdiction, or statutory scope. And occasionally, his writing operates as rhetorical payload, shaping how the stakes of a case are described.

That pattern reflects not only Scalia’s jurisprudence but his theory of legal craft.

In a long interview with Bryan Garner for a 2010 issue of Scribes Journal, Scalia insisted that lawyers who misuse words are “making dull the tools of their trade.” Precision, for him, was not aesthetic fussiness but institutional necessity. Courts, he warned, must articulate holdings clearly; otherwise, “instead of reducing litigation… you’ve complicated it.” And when asked what most often went wrong in briefs, his answer was “prolixity.” The goal was disciplined persuasion, not maximalist flourish.

That philosophy helps explain why Scalia shows up the way he does in modern briefing. He is not usually cited to carry an entire argument. He is cited to sharpen it.

How Much Work Is Scalia Doing?

The first question is simple: when briefs cite Scalia, how heavily do they rely on him?

Most briefs that cite Scalia do so sparingly—often one to three mentions. Only a small number rise into the upper single digits. The distribution is right-skewed.

That pattern suggests something important. In most briefs, Scalia is not the entire argument. He is typically invoked to support a particular interpretive move—textual constraint, a canon, a line-drawing proposition—not to supply the whole theory of the case.

That fits Scalia’s own view of advocacy. Asked what he most often saw wrong in briefs, he answered, “Prolixity, probably,” and praised lawyers who stopped “when [they] had nothing more to say.” If Scalia valued precision over verbosity, it is unsurprising that modern advocates often use him as a pointed citation rather than a sustained treatise.

The Dominant Use: Textualism as Infrastructure

If Scalia were invoked mainly as a cultural touchstone, we would expect a scattered pattern of reasons for citation. Instead, one category dominates.

The largest share of briefs cite Scalia for textualism and interpretive canons. Other categories—jurisdiction and procedure, separation of powers, administrative law, criminal and Fourth Amendment—are present but secondary.

This confirms part of the broader narrative: Scalia’s most pervasive influence is methodological. Brief writers routinely rely on him to legitimize a text-first approach.

The point is not abstract. In United States Nuclear Regulatory Commission v. Texas, for example, the State Respondents confronted an argument about the meaning of “party aggrieved” under the Hobbs Act. They invoked then-Judge Scalia’s reasoning in Simmons v. ICC that to “give meaning to that apparently intentional variation,” courts must read “party” as referring to a party before the agency, not merely a litigant in court. At the same time, they emphasized that Scalia “said nothing about the question here”—how one becomes a party before the agency—and turned to Lujan to argue that “person … aggrieved” requires only identification of agency action and a legal wrong, not intervention in agency proceedings.

The move is characteristic of cites to Scalia in this set. Scalia is cited not as a partisan hero but as an interpretive authority whose reasoning must be carefully parsed. His words are treated as tools that can constrain the other side, but can also limit the scope of their own implications.

That dynamic mirrors Scalia’s own description of originalism and textualism. “I am not a strict constructionist,” he insisted in the Scribes interview. “You shouldn’t interpret it strictly; you should interpret it reasonably.” For advocates, invoking Scalia is often shorthand for that kind of disciplined reasoning: not policy-driven expansion, not wooden literalism, but rule-bound interpretation anchored in enacted text.

Cross-Ideological Usage: The Biden SG and Scalia

If Scalia were primarily an ideological emblem, one would expect his influence to taper in briefs filed by administrations that disagree with him on major substantive issues. The data suggest otherwise.

Consider the United States’ brief in Delligatti v. United States, filed by the Biden Solicitor General’s office. There, defending a federal criminal statute, the government relied repeatedly on Scalia’s reasoning in Johnson and Castleman to argue that force “capable of causing physical pain or injury” includes conduct that causes bodily harm—even where the harm results from an omission.

The brief quotes Scalia’s concurrence in Castleman: it “is impossible to cause bodily injury without using force ‘capable of’ producing that result.” And it notes that it was “Justice Scalia who authored the Court’s precedent on the meaning of ‘violent’ force,” including crimes like murder and assault with a dangerous weapon—the very offenses the petitioner sought to exclude.

This is not an isolated flourish. It is doctrinal work. The government was not invoking Scalia to signal cultural allegiance. It was relying on his articulation of a controlling standard to defeat a narrowing construction of the statute.

That example underscores a broader pattern in the data: Scalia is cited across party types and across administrations because his formulations are embedded in the Court’s doctrine. He has become part of the justices’ shared grammar.

Procedure and Institutional Boundaries

The secondary categories—jurisdiction and procedure, separation of powers, administrative law—are where Scalia most clearly functions as doctrinal architecture.

Note: the sample size for Party Committee is small which is why it is concentrated in only one area.

Textualism dominates across party types. But government entities, including state and federal actors, show meaningful shares of separation-of-powers and procedural citations. Private parties, while heavily textualist, also rely on Scalia in jurisdictional and administrative contexts.

In Berk v. Choy, for example, the respondent invoked Scalia’s majority in Shady Grove and his dissent in Stewart Organization to explain the purpose of the “direct collision” test under Hanna. As Scalia wrote in Stewart, Congress is concerned “to avoid significant differences between state and federal courts in adjudicating claims.” That language is not ornamental. It supplies a theory of federal procedural law that values uniformity and respect for state policy where possible.

Scalia’s interview comments about clarity and institutional function illuminate why his writing recurs in these disputes. He emphasized that in appellate cases “the important part is the opinion,” and that unclear holdings increase litigation rather than reduce it. That conception of judging as rule-articulation explains why lawyers return to Scalia in cases about who can sue, what counts as a party, or what degree of force triggers enhanced penalties. His opinions often speak in rule-defining terms.

Concentration: Where Scalia Spikes

Although most briefs cite Scalia lightly, some cases attract heavier use.

A small cluster of cases accounts for the highest aggregate Scalia citations. These do not appear at random. They tend to involve administrative authority, statutory structure, procedural thresholds, or criminal-law definitions—precisely the contexts in which line-drawing matters most.

In those cases, Scalia’s words operate less like background authority and more like a structural foundation. Remove them, and the doctrinal structure becomes harder to justify.

The Repeat-Player Effect

Scalia citations also cluster among repeat Supreme Court advocates.

A small number of attorneys account for a disproportionate share of total Scalia mentions. The list includes Solicitors General (current and former) and several other elite private advocates.

This is not surprising. Scalia cared deeply about writing craft and clarity. In the interview, he recalled picking up a brief that was “elegant” and “crisp” and immediately recognizing its quality. Modern repeat players operate in that environment. Citing Scalia is not just doctrinal positioning; it is writing in the Court’s preferred idiom—signaling clarity, structure, and constraint.

A Functional Legacy

Biskupic’s CNN narrative is right to say that Scalia’s views are “ascendant.” The data provide testable measures.

Scalia is most pervasive as interpretive infrastructure. Brief writers cite him to justify text-first reasoning and familiar canons.

He is especially powerful as doctrinal architecture. In cases about institutional authority, procedural thresholds, and statutory limits, his formulations provide ready-made boundaries.

And occasionally, he serves as rhetorical payload—language that compresses a theory of judicial restraint or institutional caution into a memorable line.

What the data do not show is Scalia functioning primarily as a partisan hook. Instead, they show something more durable: his incorporation into the mechanics of Supreme Court persuasion.

In today’s briefs, Scalia’s positions are rarely the whole argument. More often, they constitute the language in which arguments are built.