"You could have 50 different states having 50 different regulations... until they were all litigated out"
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Scalia is doing what he often did best: turning federalism into a dare. The line is a warning disguised as a shrug, painting a country where every state gets to run its own regulatory experiment, and the “solution” is to let the courts grind down the differences case by case “until they were all litigated out.” It’s mordant because it treats legal conflict not as a bug but as the operating system.
The specific intent is to spotlight the practical chaos of a fragmented national rulebook. Fifty regimes means fifty points of friction for businesses, citizens, and governments, and Scalia is implicitly asking: is that really what you want? But the subtext is sharper. He’s also critiquing a modern habit of outsourcing political hard choices to judges. If lawmakers won’t or can’t create a clear national standard, the vacuum gets filled by litigation, and the judiciary becomes an unplanned regulatory agency, issuing policy through precedent rather than elections.
Contextually, this is Scalia’s recurring anxiety about courts being used to nationalize norms through constitutional adjudication, whether the topic is commerce, rights, or administrative power. The phrase “litigated out” carries a cynical timeline: ordinary people live under uncertainty while well-resourced actors sue their way to clarity. It’s not just about states’ rights versus federal power; it’s about legitimacy. Scalia is signaling that a nation shouldn’t have to purchase coherence through endless lawsuits, because that kind of coherence arrives late, unevenly, and with a democratic IOU attached.
The specific intent is to spotlight the practical chaos of a fragmented national rulebook. Fifty regimes means fifty points of friction for businesses, citizens, and governments, and Scalia is implicitly asking: is that really what you want? But the subtext is sharper. He’s also critiquing a modern habit of outsourcing political hard choices to judges. If lawmakers won’t or can’t create a clear national standard, the vacuum gets filled by litigation, and the judiciary becomes an unplanned regulatory agency, issuing policy through precedent rather than elections.
Contextually, this is Scalia’s recurring anxiety about courts being used to nationalize norms through constitutional adjudication, whether the topic is commerce, rights, or administrative power. The phrase “litigated out” carries a cynical timeline: ordinary people live under uncertainty while well-resourced actors sue their way to clarity. It’s not just about states’ rights versus federal power; it’s about legitimacy. Scalia is signaling that a nation shouldn’t have to purchase coherence through endless lawsuits, because that kind of coherence arrives late, unevenly, and with a democratic IOU attached.
Quote Details
| Topic | Justice |
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