Justice Antonin Scalia, Constitutional Discourse, and the Legalistic State

President Ronald Reagan, Antonin Scalia has established himself as a justice inclined to support the contemporary popular definition of a conservative jurist. His opinions and voting patterns have aligned him closely with the other Reagan administration appointees to the Court and with Chief Justice William Rehnquist. Despite occasional confounding opinions or votes, he has supported contemporary conservative ideological positions on the scope of personal and minority rights, the policy-making discretion of the executive, and the rights of property owners (Baugh 1989; Brisbin 1990; Kanner 1990; King 1988; Moore & Fields 1988; Nagareda 1987; Rubin & Melone 1988; Wilson 1986: 1181-1203; Wyszynski 1989). This article examines the content of Scalia's jurisprudence through the end of the 1989 term of the Supreme Court.' Although the commentary will shed light on constitutional law and theory in the era of the Rehnquist Court and on Scalia, it is designed to encourage closer attention to the language of the law when studying American appellate courts. As illustrated by the example of Scalia, contemporary research on the appellate judicial process tends to fall into two categories. One category includes research that adopts an instrumentalist view of judicial votes and opinions as conditioned by socioeconomic or political relationships with the external world. The instrumentalist approach appears today in studies of judges that link their behavior to variables