Mentions of Justice Scalia Surge at Conservative-Dominated Court

References to the late Justice Antonin Scalia spiked during Supreme Court oral arguments this year, highlighting his lasting influence on how the court interprets the law.

Justices and advocates have invoked Scalia’s name nearly three dozen times just since the current term began in October. That’s already on par with the number of references he’s received in most calendar years since he died in 2016, according to a Bloomberg Law analysis.

Scalia, known more for his biting dissents in the minority during his 30 years as justice, is now a “reference point for how arguments are framed,” said John Elwood, the head of Arnold & Porter’s appellate practice.

Brett Kavanaugh, one of three conservative justices appointed by Donald Trump, and the court’s liberal wing are among those most frequently citing Scalia, sometimes reflecting competing views on how to apply the textualist and originalist philosophies he championed—now the court’s dominant framework.

Advocates have also leaned on Scalia’s name, as in December when both sides cited him during arguments over how to interpret an 85-year-old investment law.

The tug-of-war reflects a “second-generation problem” for the ideas Scalia helped popularize, said Yale Law School professor Abbe Gluck.

There’s “a first generation when the theory is adopted and developed, and a second generation when it becomes so popular that there are different versions of it and people start to really scrutinize parts of it,” Gluck said. “That’s what you’re seeing at the court right now.”

Citing Scalia

Bloomberg Law reviewed more than 500 oral argument transcripts from February 2016 through December 2025 and identified more than 300 references to Scalia by name—averaging over 30 a year since 2018—across roughly 140 cases.

This year alone, the late justice was referenced by name more than 50 times. That number was boosted by a religious liberty case focused on his majority opinion in Heck v. Humphrey, but his dissents have also gotten similar treatment.

Kavanaugh and US Solicitor General John Sauer, a former Scalia clerk, each cited his dissents taking a broad view of presidential power in early December as the court considered granting Trump greater control of independent agencies.

No other former justice comes up as often.

Justice Ruth Bader Ginsburg, for example, has been referenced by name 30 times since her death in 2020. Former Chief Justice William Rehnquist, who served on the court for more than three decades and died in 2005, has been cited by name a little more than 70 times since 2016.

Kavanaugh most frequently cites Scalia, with at least 25 mentions since joining the bench in 2018, some of which included references to Scalia’s 2012 treatise, “Reading Law.”

He’s followed by veteran lawyer Paul Clement, a former Scalia clerk. The top five is rounded out by three court liberals—Justices Sonia Sotomayor, Elena Kagan and Stephen Breyer—who each invoked him a dozen or more times, often in disputes over statutory interpretation.

The liberal justices invoke Scalia hoping it will be persuasive with the other members of the court, said Clement, who runs his own firm, Clement & Murphy.

“That’s the same reason I’m invoking his name,” Clement said.

“I wouldn’t use my precious minutes in front of the justices if I didn’t think it was, in the context of that particular case, something that’s going to help me win,” he said.

Strategic Litigating

Scalia’s method emphasized reading laws based on the plain meaning when they were adopted. But it took decades for that approach to be widely embraced.

Attorneys were once more likely to search for opinions from former Justices Anthony Kennedy and Sandra Day O’Connor as they looked for an edge, said Elwood, who clerked for Kennedy.

“When they were the swing justices, people would always put those parentheticals in their briefs,” he said. “The Scalia opinion is more useful now.”

A key difference between Scalia and Kennedy and O’Connor: His impact has heightened since his death. O’Connor, who retired in 2006 and died in 2023, was referenced roughly 50 times over the past decade, and Kennedy approximately 60 times since his retirement in 2018.

One explanation is how frequently Scalia’s former clerks litigate before the court. Since October, over a third of the argued cases have featured a former Scalia clerk at the lectern.

That’s recently led to the sort of Scalia-on-Scalia conflict Gluck described. In one notable moment in December, two former Scalia clerks—Clement and Skadden Arps’ Shay Dvoretzky—sparred over whether the justice’s views favored their side in a case tied to investor lawsuits.

A ‘Thomas Court’

The reverence for Scalia among the justices was apparent during November arguments, when Justice Samuel Alito called him the “founding father of textualism.”

But there are differences between Scalia and the current conservative bloc, including in their approach to court precedent. Justice Clarence Thomas joked in a September speaking appearance that Scalia once distinguished the two by “calling me bloodthirsty.”

“Despite their frequent invocations, this is more of a Justice Thomas court in the demonstrated willingness of the court’s supermajority to upend existing law and settled expectations,” said Kate Shaw, a University of Pennsylvania law professor.

Another theme of the past few years, said Shaw, is the conservatives “shadowboxing” with Scalia’s legacy and the proper course to follow in cases centered on statutory interpretation.

That’s not likely to go away, as the court continues to grapple with how Scalia’s methods apply to a “body of law handed down when the rules of the road were very different,” she added.

Clement, too, said he expects more tussles as the court seeks to refine the “jurisprudence of rules” Scalia outlined.

The court is set to rule in 2026 on cases involving separation of powers, gun rights, and religious liberty—all issues Scalia wrote about, sometimes as the lone voice in dissent.

“I think he thought the reason you write a dissent is to share your approach, and hopefully shape how the issue is looked at in the long run,” Clement said.