Judge Dread

Antonin Scalia explains why we should fear men in robes.

A Matter of Interpretation: Federal Courts and the Law–An Essay
By Antonin Scalia, with commentary by Amy Gutmann, ed., Gordon S. Wood, Laurence H. Tribe, Mary Ann Glendon, and Ronald Dworkin
Princeton University Press; 172 pages; $19.95

There are two kinds of law, wrote Thomas Paine in 1805: “Legislative law is the law of the land, enacted by our own legislators, chosen by the people for that purpose. Lawyers law is a mass of opinions and decisions which courts and lawyers have instituted themselves.” Paine liked the first kind of law better. So does Antonin Scalia. As the most intellectually consistent and stylistically gifted member of the Supreme Court, Scalia has never hidden his enthusiasm for the American tradition of mistrusting courts and lawyers. The basics of his judicial philosophy are now usefully collated in this volume, which consists of an essay by the associate justice, followed first by responses from Gordon Wood, Laurence Tribe, Mary Ann Glendon, and Ronald Dworkin, and then by a reply from Scalia.

According to Scalia, the problem begins in law school, where tomorrow’s judges digest a steady diet of fusty 19th-century English appellate decisions, and taste–for the first time–the joys of reasoning by analogy and precedent. A few of these students befriend their senators, or find some other way to become federal judges; by that time, they have internalized what Scalia calls the “common-law attitude,” and they become a dangerous lot. Faced with an ambiguous statute or regulation, these judges, reared on the common law, too often treat the enacted text as just one more precedent to circumvent. In other words, they hijack the democratic process.

Scalia offers two antidotes to this epidemic of judicial lawmaking: textualism and originalism. “Textualism” is just what it sounds like. As Scalia puts it, “The text is the law, and it is the text that must be observed.” The only democratically binding feature of a statute is its literal language, because that language alone has been ratified by both houses of Congress and the president in accordance with the Constitution. “Originalism,” as Scalia defines it, is a species of textualism particularly relevant to constitutional interpretation. Its adherents tether their interpretations to plain meanings as they were understood when the text was first penned. Originalists believe, as Scalia puts it, that a constitution’s “whole purpose is to prevent change–to embed certain rights in such a manner that future generations cannot take them away.”

None of this is new to anyone who has paid attention to Scalia’s opinions and other writings over the past decade. Yet, in A Matter of Interpretation, his reprise of the traditional jeremiad against judicial usurpation concludes with a twist. The specter raised by common-law judging, Scalia says, is not the unelected judge determined to impose the values of an elite few upon the masses, but that old Tocquevillian villain, the tyranny of the majority. Scalia’s argument goes like this: As judges persist in bending the law, the majority of the moment will begin to insist ever more stridently on judges of its particular ideological stripe. Once on the bench, these judicial politicians (emboldened by their anything-goes common-law attitudes) will set about encoding the popular will into law, to the detriment of unpopular minorities.

As law Professor Mary Ann Glendon points out in her response, this is an odd coda, especially given the majoritarian premises of Scalia’s philosophy. (Glendon shares Scalia’s distrust of undisciplined judges, but hers is the more traditional anxiety, rooted in a fear of elites.) At the end of the book, Scalia, defending his prediction that judges will carry democracy too far, contends that the individual rights favored by judges tend to be the same ones championed by popular majorities. Here is Scalia’s list: women’s rights, racial-minority rights, homosexual rights, abortion rights, and “rights against political favoritism.” Scalia’s notion of what constitutes a popular cause does seem questionable–racial-minority and gay rights are not nearly as universally supported as Scalia seems to think they are. His nightmare scenario is also far-fetched: Life-tenured judges are dubious vehicles for implementing a popular will that changes from moment to moment. Besides, judges can’t be relied on: Supreme Court justices, for instance, are famous for disappointing their appointers.

Scalia’s prescriptions have long drawn fire from legal academics. Some of their criticisms are repeated here by legal academics Laurence Tribe and Ronald Dworkin: Scalia’s originalism is too glib, because it doesn’t distinguish between what the Constitution says and what its framers expected it to do; too malleable, because it merely substitutes the guesswork of historians for the musings of moral philosophers; too value-laden, because it imputes an anti-evolutionary purpose to the Constitution. And so on.

Yet, Scalia is refreshingly right in several particulars. He justifiably laments the virtual disregard of statutory interpretation in law-school curricula, where the hoary common-law case-study method still predominates despite the fact that most law nowadays takes the form of statutes and regulations.

Scalia also rightly rejects the use of “legislative history” (committee reports and floor debates) as a guide to divining lawmakers’ intent. Committee reports are worthless, not only because they lack a democratic pedigree, but because they are infinitely pliable. (Scalia quotes Judge Harold Leventhal’s quip that using legislative history is like looking over the heads at a cocktail party until you spot your friends.) And Scalia is right to object to the caricature of the textualist/originalist judge as wooden and unimaginative–nontextualists, after all, can be plenty wooden and unimaginative themselves.

Admitted nontextualists, incidentally, are becoming harder and harder to find. Scalia’s “plain language” approach has certainly become more popular among his bench mates. The simplest proof of this is the remarkable increase in citations to dictionaries in Supreme Court opinions. A recent study found that dictionary definitions were 14 times more likely to appear in the court’s decisions five years after Scalia’s swearing-in than they were five years before it. (The originalists, of course, like to dust off old dictionaries–Dr. Johnson’s 1785 edition for the Bill of Rights, for instance.) This lexicographical trend won’t cure the textualists’ reputation for stiltedness; reading some of these opinions is like listening to the high-school valedictorian who inevitably begins, “I didn’t know what to say today, so I looked up the word ‘commencement.’ “

Even devotees of the “Living Constitution” like Tribe now declare their fidelity to text. It’s surprising that Tribe’s essay doesn’t discuss his textualist argument for the unconstitutionality of Colorado’s Amendment 2, which forbade cities to enact anti-discrimination ordinances based on sexual orientation. Citing almost no cases, Tribe told the Supreme Court that the Colorado initiative violated the letter of the Equal Protection Clause because it denied gays alone the protection of the anti-discrimination laws. Not an airtight argument (all anti-discrimination laws pick and choose among protected classes), but a cleverly textualist one–and one that seems to have helped convince a majority of the court to strike down the amendment, despite a lack of helpful precedent. (Scalia offered a different textualist reading of the Equal Protection Clause, grounding his arch dissent firmly in majoritarianism–“The Court has mistaken a Kulturkampf for a fit of spite.”)

So how often are judges actually as willful as Scalia claims they are? It still sometimes happens. Last spring, the 9th U.S. Circuit Court of Appeals found in the Due Process Clause a constitutional right to physician-assisted suicide by relying on Plato, Montaigne, Thomas More, and the Roper poll. Its decision, which Tribe defended before the court earlier this month, is almost certain to be reversed, probably on textualist grounds. Most of the current textual infidelity, though, occurs because the doctrine of stare decisis–which dictates adherence to precedent–forces today’s judges to live with adventurous Supreme Court decisions from earlier in the century. Not surprisingly, Scalia is no big fan of stare decisis: In his dissents, he often calls upon the court to scour away layers of encrusted precedent in order to get at the original meaning of the underlying text.

How judges interpret statutes and constitutions is, according to Scalia, “a question utterly central to the existence of democratic government.” That’s hard to dispute. Yet, as Wood–a historian of early America–shows in his essay, it’s also a question we’ve been asking since the colonial era, fitting the answer to the needs of the moment. The revolution of 1776, for instance, was fueled in part by the colonists’ resentment of the overweening powers of royal judges. As early as the 1780s, however, the pendulum had swung back, and many Americans looked to the courts to check the excesses of their legislators. To Scalia, however, the idea that judicial power responds to the demands of the time merely proves that “there have always been willful judges who bend the law to their wishes.”

Seen from a historian’s perspective, Scalia’s view of the debate over the judiciary does look a bit Manichaean. But it would be a mistake to dismiss him for that reason. Scalia’s arguments have shaped the debate in our time; he has gone a long way toward changing how judges interpret the letter of the law. Not all the way–he has not yet succeeded in building a durable majority on the court. Does this mean that unpopular individual rights are in peril? More likely, it simply goes to show–as do the exchanges in this stimulating book–that there is more than one way to read a text.