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Justice for Scalia

1.

Appointed to the United States Supreme Court by Ronald Reagan in 1986, Antonin Scalia has already proved a remarkable justice. Much concerned with questions of legal theory, he has brought to the bench a sharp intelligence, lively prose that fairly jumps from the dreary pages of the Supreme Court reports, and a determined commitment to reform the ways courts interpret the law.

Scalia holds strong convictions. Charming and pugnacious, he appears to enjoy and sometimes even to court controversy. To the general public this tendency is most visible in Scalia’s many opinions that articulate conservative positions on hotly contested issues like abortion rights and affirmative action. But to the legal profession Scalia is equally well known for his insistent advocacy of the interpretative method known as textualism.

Textualism is a theory of the way judges ought to interpret legal documents, like statutes and the Constitution. Scalia uses the theory to support a number of highly consequential and controversial propositions. He believes that judges who interpret statutes should avoid all reference to legislative history. And he also believes that judges should interpret the Constitution strictly according to the original meaning of its language.

Although Scalia was well known for his textualism at the time of his appointment, A Matter of Interpretation: Federal Courts and the Law sets forth a concise defense of the theory, considered now from the mature perspective of a seasoned and powerful justice. The book consists of the Tanner Lectures which Scalia delivered at Princeton University in 1995, along with commentary on the lectures by Gordon Wood, Laurence Tribe, Mary Ann Glendon, and Ronald Dworkin, as well as Scalia’s response.

1.

Most litigation in federal courts involves the interpretation of statutes. Yet, as two prominent law professors have put it, the “hard truth of the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation.”1 Uncertainty in the interpretation of legislation adversely affects not only lawyers and judges, but all those who seek to live by the laws. In A Matter of Interpretation Scalia is right to call for a vigorous reassessment of our practice of statutory interpretation. His book’s main contribution is to remind us that legal authority attaches to the text of a duly enacted statute, not to the unenacted intentions of legislators.

Questions of interpretation arise when the meaning of a statutory text is not clear. Scalia believes that the theory of textualism requires courts to determine statutory meaning by referring to ordinary language usage, to generally accepted rules of construing texts, and to other legislation that has been passed. The chief theoretical position that Scalia wants to defend in A Matter of Interpretation is that courts ought scrupulously to avoid referring to legislative history when they are attempting to understand an ambiguous statute. Legislative history consists of items such as committee reports, floor debates, and legislative drafts—all the available documents and statements that accumulated while a statute was being passed. Scalia writes: “I object to the use of legislative history on principle, since I reject intent of the legislature as the proper criterion of the law.” Scalia fears that if judges can rely on legislative history, courts will engage in “judicial lawmaking” by seizing on one piece of evidence or another to write their own preferences into law.

Scalia’s relentless campaign against the use of legislative history, and his refusal to join opinions interpreting statutes by referring to that history, have been astonishingly effective. One recent study estimates that the proportion of Supreme Court opinions in cases involving statutory construction that refer to legislative history has dropped from 100 percent in the 1981 term to 18 percent in the 1992 term.2 Scalia may justly claim a large share of the responsibility for this transformation.

For this reason it is all the more important to stress that Scalia’s opposition to the use of legislative history rests on exceedingly shaky theoretical foundations. Scalia readily acknowledges that if the meaning of a text is unclear, “the principal determinant of meaning is context.” In ordinary life the intentions of a speaker are central to the process by which we determine his meaning. If someone casually observes that “Casey has thrown a disc,” I would want to know something about the speaker’s intention in order to understand whether the comment refers to the state of Casey’s back or to the integrity of his CD collection.

Scalia does not dispute this, and he even concedes that there may be extreme cases where legislative history may be consulted in order to determine whether there has been a “‘scrivener’s error,’ where on the very face of the statute it is clear to the reader that a mistake of expression…has been made.” In his commentary, Ronald Dworkin cannily seizes upon this concession and brings out its implications.

Purporting to save Scalia from the inconsistency of allowing “intention to trump literal text,” he reconstructs Scalia’s position as resting on the distinction between what Congress “intended to say in enacting the language [it] used,” which Dworkin calls “semantic intention,” and what Congress hoped to achieve by using that language. Dworkin notes that “any reader of anything must attend to semantic intention, because the same sounds or even words can be used with the intention of saying different things.”

Scalia accepts Dworkin’s distinction, and he acknowledges the necessity of referring to semantic intention:

I agree with the distinction that Professor Dworkin draws…between what he calls “semantic intention” and the concrete expectations of lawgivers. It is indeed the former rather than the latter that I follow. I would prefer the term “import” to “semantic intention”—because that puts the focus where I believe it should be, upon what the text would reasonably be understood to mean, rather than upon what it was intended to mean. Ultimately, of course, those two concepts chase one another back and forth to some extent, since the import of language depends upon its context, which includes the occasion for, and hence the evident purpose of, its utterance. But so far Professor Dworkin and I are in accord: we both follow “semantic intention.” [my italics]

But Dworkin’s distinction is a poisoned gift. Having accepted it, Scalia can no longer maintain any principled objection to the general use of legislative history. Such history may always reveal something about “the occasion for” the enactment of a statute and hence illuminate the search for semantic intention.

Scalia’s concession, however, causes even deeper theoretical damage to his argument. In his Tanner Lectures Scalia contends that “with respect to 99.99 percent of the issues of construction reaching the courts, there is no legislative intent, so that any clues provided by the legislative history are bound to be false.” Scalia evidently means that in the bustle of lawmaking most legislators simply do not have any view with regard to the kinds of questions of statutory interpretation that typically come before courts. They do not in fact have “any preference as to how [these questions] should be resolved.” But Scalia cannot simultaneously accept Dworkin’s concept of semantic intention and maintain his purely empirical and contingent definition of legislative intent. Otherwise most statutes would, on Scalia’s own account, have no semantic intention at all.

So Scalia must abandon his empirical definition and instead attribute semantic intention to the “evident purpose” of legislation. This attribution implies that Scalia must approach legislation on the presumption that it will have such a purpose. He must assume that legislation, in Felix Frankfurter’s words, is “an active instrument of government which, for purposes of interpretation, means that laws have ends to be achieved”:

Legislation has an aim; it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of government. That aim…is evinced in the language of the statute…. That is what the judge must seek and effectuate…. We are not concerned with anything subjective. We do not delve into the mind of legislators or their draftsmen, or committee members…. [T]he purpose which a court must effectuate is…that which it did enact, however inaptly, because it may fairly be said to be imbedded in the statute….3

To put the matter simply, Scalia, like virtually all other American judges, can only proceed on the presumption that legislation is enacted for a reason, one that cannot be reduced to the empirical intentions of actual legislators. This reason must be for him the “legislative intent” of the statute. It follows that courts should be denied access to legislative history only if their interpretation of this legislative intent ought in principle to bear no connection whatever to the actual intentions of those who enact statutes.

It is hard to see how this position can be defended. We do not in ordinary life radically disassociate the purpose of an action from the intentions of the actor. Oliver Wendell Holmes once famously observed that “even a dog distinguishes between being stumbled over and being kicked,”4 and the distinction turns largely on the intent of the actor. Even if we were to agree with Scalia (and Frankfurter) that the purpose of legislation is not reducible to the empirical intentions of actual legislators, it would still not follow that these intentions should have no relevance to our understanding of legislative purpose. To the contrary, such intentions seem at least pertinent to understanding “the occasion for, and hence the evident purpose of,” a statute, which is why Frankfurter himself advocated the judicious use of legislative history.5

The gulf between Scalia’s theory and his conclusion is so wide that one must inquire why Scalia so adamantly presses his case for disregarding legislative history. The answer, I think, lies in his view that the use of legislative history has “on balance…facilitated rather than deterred decisions that are based upon the courts’ policy preferences, rather than neutral principles of law.” The history of a particular piece of legislation may include abundant and often contradictory evidence, sometimes strategically planted by interest groups and legislative staff in the form of statements, drafts, and congressional speeches that could provide the basis for future lawsuits. Scalia fears that if such evidence is made available to judges they could use it to write their own preferences into law.

Scalia’s conclusion, then, does not flow from his theory of legislation; it springs instead from his mistrust of judges. But no plausible interpretative technique can eliminate the need for judicial judgment,6 and Scalia’s mistrust of judges would thus disqualify all interpretative methods. Judges who are willing to abuse the ambiguities of legislative history would also be willing to abuse the ambiguities of ordinary usage or technical legal rules of interpretation; they could certainly manipulate the general context of existing legislation. The problem of judicial lawmaking can ultimately be solved only when judges become fully aware of their legitimate functions. It cannot be solved by suppressing evidence that is plainly material to informed decision-making.

  1. 1

    Henry M. Hart, Jr., and Albert M. Sacks, The Legal Process, edited by William N. Eskridge, Jr., and Philip P. Frickey (The Foundation Press, Inc., 1994), p. 1169. In her comment Mary Ann Glendon offers a useful historical summary of the problems of statutory interpretation in a system of common law adjudication.

  2. 2

    Thomas W. Merrill, “Textualism and the Future of the Chevron Doctrine,” 72 Washington University Law Quarterly (1994), pp. 351, 355.

  3. 3

    Felix Frankfurter, “Some Reflections on the Reading of Statutes,” 2 The Record of the Association of the Bar of the City of New York (1947), pp. 227-229.

  4. 4

    Oliver Wendell Holmes, The Common Law 7, edited by Mark DeWolfe Howe (Belknap Press/Harvard University Press, 1963).

  5. 5

    Legislative history would be theoretically irrelevant only if courts were to regard statutes as purely linguistic acts, whose sole function was to become integrated as seamlessly and as predictably as possible into the context of existing linguistic conventions. But no American judge, and, as his response to Dworkin indicates, certainly not Scalia himself, would as a practical matter regard a statute in this way. Courts view legislatures as in the business of solving problems, not of generating words.

  6. 6

    Certainly not Scalia’s own proposed method of interpretation. The ordinary use of canons of statutory construction, and the general context of existing legislation, are all manifestly indeterminate. The general context of preexisting legislation is unlikely to tell us anything very helpful about the specific purpose of a new statute. Canons of construction can at most offer “simply one indication of meaning,” as Scalia himself concedes. And the ordinary use of a language brings us full circle, for the meaning of such use depends upon the context, and the relevant context is one that conceives legislation as a purposive activity.

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