Justice Scalia, Implied Rights of Action, and Historical Practice

Anthony J. Bellia Jr.*

Justice Scalia influenced constitutional and statutory interpretation in U.S. courts in important ways. Regarding constitutional interpretation, Justice Scalia argued that the role of courts is to apply the original public meaning of the Constitution, as best as they can determine it. In defending this position, Justice Scalia moved scholars, judges, and lawyers to account more for constitutional text, structure, and historical practice when interpreting the Constitution.¹ Regarding statutory interpretation, Justice Scalia argued that the role of courts is to apply the meaning that statutory text conveys to a reasonable and informed reader. In defending this position, Justice Scalia moved scholars, judges, and lawyers to think harder about questions involving statutory text, legislative history, legislative purpose, legislative intent, canons of construction, and so on. During his tenure on the Supreme Court, Justice Scalia applied these methods of interpretation to a wide range of constitutional and statutory questions.

This Essay examines a specific area that Justice Scalia influenced through the methods of interpretation that he applied—namely, the question of “implied rights of action.” When may a plaintiff bring a federal right of action for damages for the violation of a federal statute that does not expressly create one? This question is one of a series of related questions, such as when may a plaintiff pursue equitable relief for a statutory violation, or pursue legal or equitable relief for a constitutional violation—absent express congressional authorization. The Court has considered the question of when a plaintiff may pursue damages for a federal statutory violation on its own terms, however, and this Essay will address this question alone.² At one time, the Supreme Court treated this question as a question of federal judicial power to apply federal common law. Today, in part due to Justice Scalia’s influence, the Court treats the question of implied rights of action as a question of statutory interpretation.

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© 2017 Anthony J. Bellia Jr. Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*O’Toole Professor of Constitutional Law, Notre Dame Law School. For helpful comments and questions, I thank Tricia Bellia and Brad Clark, as well as participants in the Notre Dame Law Review symposium, “Justice Scalia and the Federal Courts,” for which this Essay was written.

1 See William K. Kelley, Justice Antonin Scalia and the Long Game, 80 Geo. Wash. L. Rev. 1601 (2012); Chief Justice John G. Roberts, Jr. et al., In Memoriam: Justice Antonin Scalia, 130 Harv. L. Rev. 1 (2016).

2 Even though this Essay does not address implied rights of action for damages for constitutional violations, or the availability of equitable remedies for federal statutory or constitutional violations, the history this Essay describes in Part III may be relevant to those questions as well.