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30 Harv. J.L. & Pub. Pol'y 983 (2006-2007)
The Newer Textualism: Justice Alito's Statutory Interpretation

handle is hein.journals/hjlpp30 and id is 991 raw text is: NOTE THE NEWER TEXTUALISM: JUSTICE ALITO'S STATUTORY INTERPRETATION I. INTRODUCTION Despite his fifteen-year tenure as a judge on the U.S. Court of Appeals for the Third Circuit, Justice Samuel Alito remained something of a mystery when he was nominated to the Su- preme Court in 2005. His lower court opinions were described as reserved, much unlike the sometimes polemical screeds penned by other members of the bench.1 Justice Alito's seem- ingly conservative views as an appellate judge prompted some commentators to compare him to Justice Antonin Scalia,2 but these analysts made little headway in defining Justice Alito's legal methodology with any measure of precision. More than a year after his confirmation, legal scholars, the media, and the American public still have many questions about Justice Alito. This Note attempts to answer one of those questions: What is Justice Alito's method of statutory interpretation? In 1990, Professor William Eskridge documented the rise of the new textualism that Justice Scalia brought to the Supreme Court upon his elevation in 1986.3 The new textualism, Profes- sor Eskridge explained, posits that once the Court has ascer- tained a statute's plain meaning, consideration of legislative history becomes irrelevant.'4 This Note contends that, notwith- standing the frequent comparisons to Justice Scalia, Justice 1. E.g., Stephen Henderson, Alito Backed Strip-search of 10-year-old in Drug Case, ST. LouIs POST-DISPATCH, Nov. 6, 2005, at A2. 2. See, e.g., Peter Baker, Alito Nomination Sets Stage for Ideological Battle, WASH. POST, Nov. 1, 2005, at Al (Alito has drawn comparisons to Scalia, to the point that some have dubbed him 'Scalito'-as if he were the next generation of the Supreme Court's most powerful conservative intellect.). But see JAN CRAWFORD GREENBURG, SUPREME CONFLICT 293-94 (2007) (reporting that Justice Alito has found the nickname 'Scalito' to be inappropriate and based mostly on ethnicity). 3. See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621 (1990) (coining the phrase new textualism). 4. Id. at 623.

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