I'm So Excited to Be an Intoxicated 1L

In A Matter of Interpretation, Scalia is writing about statutory and constitutional interpretation, but spends the first pages reminiscing about first year law school. He walks us through Hadley v. Baxendale, describes Professor Kingsfield’s hypotheticals , and tells us that learning to be a common-law judge is “intoxicating,” that the image of the great judge “remains with the former law students when he himself becomes a judge.” (9). But, why begin here? 

The answer, I think, is that an important part of Scalia’s argument is about formation. Lawyers are trained, he says, to admire judges who perform “broken-field running through earlier cases” to reach “good law” (9). They learn to distinguish, to maneuver, to ask what the best rule would be and then find a way there. Scalia thinks this mindset is fine for common law, where he is content to leave it. But he thinks it is disastrous when lawyers trained this way become statutory interpreters or constitutional judges, which, in modern America, is mostly what they do. The common law habit they learned in law school does not turn off. 


If Scalia is right that formation persists, what would it look like to train lawyers differently? He does not say. He notes that statutory interpretation is barely taught, that the field is in “drought” (15). But he offers no positive account of how statutory interpreters should be formed. 


Scalia does defend textualism as better training for the task judges actually face. But he is much quicker to see the costs of common law formation than the costs of his own.. The common law mindset, he says “remains for life”, and produces “incompetence and usurpation"(14)  when judges bring it to statutes. But what about the habits of the textualist? Close reading may look neutral, yet it can overstate the determinacy of language, flatten the historical and social context in which words are understood, and hide judicial subjectivity behind appeals to “ordinary meaning”. If legal training shapes perception as deeply as Scalia claims, textualism too must have blind spots which should be addressed. 


Comments

  1. Asher CarrieroApril 16, 2026 at 1:40 AM

    I think its also worth looking a Scalia's language when he calls upon this anecdote, specifically on page 8 where he asserts that distinguishing is an art or game rather than a science. This positions it as something that rewards skill and improvisation. The common law judge, on Scalia's own telling, is not applying a method but performing a practice, and the first year law student learns to admire that performance before they learn anything else. Scalia seems aware of this, and on some level he enjoys the intoxication (much like his colleauge justice Kavanaugh). The intoxication he describes is the intoxication of watching a skilled player make moves that law school first years aspire to make. But for Scalia the habit of playing carries over into cases where Scalia thinks the judge should be executing a more constrained task. I agree with you that Scalia enters a logical issues here where one can just see textualism as a similar game with a different medium. If the common law mindset persists for life, so does the textualist one. Even if we allow Scalia the maximum charity and belive he is truely acting with the intent of neutrality, is it not better to know you are playing a game than to not?

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