SJ Quinney College of Law, University of Utah


This Article surveys an area of Justice Scalia’s legacy that is often overlooked by scholars who write broadly about the Supreme Court: his many contributions to the field of bankruptcy law. The Bankruptcy Code is rife with statutory interpretation questions that demand clear and predictable answers, due to the efficiency interests at stake and the absence of any intermediate interpretive forces, such as administrative agencies. Justice Scalia arrived on the high court at the outset of the modern bankruptcy era and this Article argues that his brand of rulebased textualism is a particularly good fit for bankruptcy law.

Specifically, four themes emerge from Justice Scalia’s bankruptcy writings: a holistic approach to the Bankruptcy Code, a commitment to textual justice, a vocal crusade against legislative history, and an insistence on clear rules to delineate bankruptcy judges’ powers. A review of Justice Scalia’s decisions exemplifying these themes leads to some surprising and perhaps counterintuitive conclusions about the ways in which his approach to the Bankruptcy Code often benefited individual debtors over larger creditors, particularly consumer lenders. This Article argues that each aspect of this philosophy promotes predictability and clarity, thereby furthering the ultimate purposes of the Bankruptcy Code.

Despite these advantages, Justice Scalia’s philosophy has not been widely embraced. To help explain this paradox, this Article identifies several bankruptcy decisions in which Justice Scalia did not faithfully follow his own rules, thereby muddying his overall message to lower courts and litigants. Nonetheless, this Article concludes by urging bankruptcy judges and practitioners to look past these exceptions and continue to press a rule-based textualist approach.