The Rule of Law as a Law of Rules: Scalia’s Defense of Judicial Formalism

In his landmark essay, The Rule of Law as a Law of Rules, Justice Antonin Scalia makes a powerful and intellectually rigorous case for why courts—especially appellate courts—should prefer general, principled rules over case-by-case discretion. Delivered in 1989 as the Oliver Wendell Holmes, Jr. Lecture at Harvard Law School, the paper distills many of the themes that came to define Scalia’s judicial philosophy: his commitment to textualism, his disdain for ad hoc balancing tests, and his insistence that law is, at its core, a system of rules rather than a system of results.

At its heart, Scalia’s essay grapples with an enduring question in jurisprudence: Should courts prioritize consistency through rules, or flexibility through discretion?

Law Under the Oak Tree vs. Law in a Republic

Scalia opens his lecture with a vivid, almost romantic image: Saint Louis, the French king, dispensing justice beneath an oak tree, listening to disputes and delivering decisions grounded not in legal codes but in an intuitive sense of fairness. The image is compelling—and not entirely out of place in modern imaginations of what a just judge should be. Scalia even notes the popularity of figures like Judge Wapner of The People’s Court fame, suggesting that this personalized, informal justice still resonates with many.

But Scalia contrasts this image with another, rooted in Enlightenment and democratic tradition: the idea that “the law is king,” as Thomas Paine once declared. In this model, justice doesn’t depend on the character or wisdom of the ruler. It’s grounded in rules that apply equally to all, a model that protects liberty not by the goodness of the decision-maker, but by the constraints imposed upon them.

Scalia’s mission in this essay is to defend the latter model—and more specifically, to argue that judicial decisions should strive to establish clear, general rules wherever possible, rather than relying on open-ended, fact-specific balancing that leaves the law murky and unevenly applied.

The Common Law Temptation—and Its Problems

Scalia acknowledges the allure of the case-by-case method, especially in common law traditions where it is believed that law evolves gradually, like a growing tree, shaped incrementally by facts and precedents. This method encourages judicial humility: decide only what must be decided in the case before you, and leave the rest for another day. Scalia admits that, early in his legal career, he subscribed to this narrow, fact-specific model of interpreting precedent.

But over time, he came to see its limitations. In a modern legal system—especially one like the U.S. federal judiciary, where the Supreme Court hears only a sliver of cases—there simply isn’t the capacity for gradual, consistent evolution through multiple similar cases. Most areas of law will not be revisited often enough to build consensus slowly. Instead, lower courts are left to fill in the gaps, resulting in inconsistency, unpredictability, and perceived injustice.

As Scalia puts it, if the Supreme Court rules on a Fourth Amendment issue using a vague "totality of the circumstances" test, it isn’t the Supreme Court that will be “closing in on the law”—it’s the lower courts, state and federal, each reaching their own interpretations. Uniformity, in such a system, becomes a casualty.

The Value of Rules: Predictability, Fairness, and Restraint

Scalia identifies several virtues that rules bring to judicial decision-making. First and foremost is predictability. Citizens subject to the law should be able to anticipate its consequences. Legal outcomes shouldn’t hinge on the unique constellation of facts in a particular case or on the identity of the judge hearing it. Rules make this possible.

Second is equality of treatment. A sense of fairness depends on people being treated the same in similar circumstances. Arbitrary discretion—even if it leads to substantively “better” results in individual cases—undermines this sense of justice. Scalia gives a memorable analogy: children are often willing to accept arbitrary rules (like “no TV on school nights”) but erupt with outrage when rules are applied unequally among siblings. Adults, he suggests, are no different.

Third, and perhaps most counterintuitively, Scalia argues that rules actually foster judicial restraint. A judge who articulates a rule constrains not only lower courts, but himself. Once a rule is laid down, the judge cannot simply change outcomes in the next case based on gut instinct or changing policy preferences. In contrast, decisions made on balancing tests or “on balance” language allow future judges (and the current judge) far more leeway—leaving them unmoored and unconstrained.

Rules also enable judicial courage. When a judge must uphold an unpopular constitutional protection—say, letting a hated criminal go free due to procedural violations—it’s easier to do so by pointing to a clear rule than by trying to justify an unpopular outcome through nebulous balancing. Rules provide both cover and justification for upholding principle in the face of public pressure.

The Trouble with “Totality” and Balancing Tests

Scalia is especially critical of doctrines that reduce legal standards to “totality of the circumstances” or “balancing” of interests. While such approaches may sound sophisticated and context-sensitive, he views them as an admission that law has run out—and discretion has taken over.

When a judge says that, based on the totality of facts, something is “reasonable” or “justified,” Scalia argues, that judge has largely ceased to perform a legal function and instead has stepped into the role of a fact-finder—much like a jury determining whether conduct was “negligent.” In these situations, appellate review becomes meaningless. There’s no clear rule to apply, and therefore no meaningful way to assess whether similar facts would lead to similar results in future cases.

Worse, balancing tests don’t lend themselves to clear precedents. What weight should be assigned to one factor versus another? How can future litigants or courts know? The result, again, is unpredictability and fragmentation across jurisdictions.

Anchoring Law in Text and Tradition

Scalia’s preference for rules is intimately connected to his larger interpretive philosophy. He argues that general rules are more readily discerned by judges who take texts seriously—who ground their interpretations in the plain meaning of the law or in the original understanding of constitutional provisions.

He gives examples of how even vague statutory language (like the Sherman Act’s prohibition on “restraints of trade”) has been successfully reduced to principled, categorical rules by the courts. That kind of reduction, he claims, is part of the judicial craft—not a betrayal of legislative intent but its fulfillment.

By contrast, when judges rely on evolving notions of morality, policy, or personal judgment to guide their interpretation, they inevitably drift into policymaking. And in those situations, laying down general rules becomes uncomfortably similar to legislating.

Case Studies: Goodman v. Pokora

Scalia concludes with a telling juxtaposition of two Supreme Court cases that illustrate the rule-vs-discretion divide. In Baltimore & Ohio R.R. Co. v. Goodman (1927), Justice Holmes imposed a bright-line rule: if you cross railroad tracks without stopping and looking, you are negligent as a matter of law. But in Pokora v. Wabash Ry. Co. (1934), Justice Cardozo rejected that rule as unrealistic and unsafe in many modern situations, returning the issue to the jury and restoring discretion.

These two cases encapsulate the dilemma Scalia’s essay addresses. The draw of fairness and flexibility on one hand, and the demands of consistency and predictability on the other.

Final Thoughts: A Call for Judicial Discipline

Scalia ends his essay not with absolutism but with humility. He concedes that not all legal questions lend themselves to rules. Some discretion will always be necessary. But his plea is for judicial discipline: we should prefer rules where possible, and only resort to open-ended judgment when absolutely necessary.

He calls on judges to recognize that when they have nothing left to apply but balancing and “totality” tests, they are no longer expounding law—they are administering justice in the most personal sense. And that moment, while sometimes unavoidable, should be seen not as an achievement, but as a last resort.

In sum, The Rule of Law as a Law of Rules is more than a defense of rules—it’s a meditation on what it means for a society to be governed by law rather than by the will of individuals. In a time when legal debates often focus on results and policy, Scalia’s essay remains a bracing reminder of why how we decide matters just as much as what we decide.