The politics of statutory interpretation.

AuthorLemos, Margaret H.
PositionAntonin Scalia and Bryan A. Garner's 'Reading Law: The Interpretation of Legal Texts' - Abstract through II. Conservative Outcomes D. Deference to Agencies, p. 849-878

ABSTRACT

In a new book, Reading Law: The Interpretation of Legal Texts, Justice Antonin Scalia and Bryan Garner describe and defend the textualist methodology for which Justice Scalia is famous. For Scalia and Garner, the normative appeal of textualism lies in its objectivity: by focusing on text, context, and canons of construction, textualism offers protection against ideological judging--a way to separate law from politics. Yet, as Scalia and Garner well know, textualism is widely regarded as a politically conservative methodology. The charge of conservative bias is more common than it is concrete, but it reflects the notion that textualism narrows the scope of federal law in ways that are attractive to Republicans but not to Democrats. Scalia and Garner hotly deny that charge. Like their critics, however, they fail to develop the argument, or to confront the association of textualism and conservatism in contemporary legal and political rhetoric.

This Review explores the connections between textualist methodology and conservative politics, and between methodological and political argument more generally. It shows that textualism is not inherently conservative in design, nor does it reliably produce conservative results. Instead, I argue, the link between textualism and conservatism is historically contingent. It was fused in the rise of the New Right in the 1980s, when conservative judges and politicians embraced textualism in statutory interpretation (together with originalism in constitutional interpretation) as antidotes to the "judicial activism" of the Warren and Burger Courts. Adopting the language of methodology gave Reagan-era pundits an efficient--and legal--means of critiquing existing law and pushing for legal change.

Although the story here is about textualism, the lesson is broader. To understand the relationship between textualism and conservatism is to appreciate the political potential of all methodological argument. The features that make methodology most law-like--its facial neutrality and its generality--may also, paradoxically, increase its value as a political tool. By focusing on the "how" of the law, methodology transcends individual cases and issues; it provides a basis for attacking wide swaths of judicial doctrine at once. Precisely because methodology offers a seemingly neutral basis for criticizing judges across a range of cases, it is a uniquely potent force for (and against) legal change--which, in turn, makes it an especially valuable device for popular and political contestation about the law. In this sense, debates over methodology may often, perhaps inevitably, have roots in something much bigger, something we might properly call "political."

READING LAW: THE INTERPRETATION OF LEGAL TEXTS. By Antonin Scalia and Bryan A. Garner. St. Paul: West. 2012. Pp. 567. $49.95.

INTRODUCTION

In Reading Law: The Interpretation of Legal Texts, Justice Antonin Scalia and his co-author, legal lexicographer Bryan Garner, provide a blueprint for the textualist mode of statutory interpretation for which Scalia is famous. (1) The bulk of the book is devoted to explaining seventy "[s]ound [p]rinciples of [i]nterpretation," (2) many of them complicated canons of statutory construction. As such, the "treatise" (3)--as Scalia and Garner describe it--represents a valuable resource for anyone engaged in the work of statutory interpretation. Yet Reading Law is "unapologetically normative." (4) The authors present textualism as a model of what judges should be doing when they interpret texts, not as a description of what most judges already do. (5)

The preface and introduction to the book make the normative case for textualism, contributing to an ever-expanding literature on the merits of competing interpretive methodologies. The appeal of textualism, for Scalia and Garner, is that it cabins the judicial role. Textualism instructs judges to give "democratically prescribed texts ... their fair meaning," while its rivals--interpretive theories that seek to promote the purpose or intent of the legislature--invite judges to decide cases according to their own "notions of public policy." (6) Textualism, the authors argue, offers protection against ideological judging; a way to separate law from politics. (7)

Scalia and Garner's insistence that textualism is politically neutral (indeed, neutralizing) is hardly happenstance. As the authors well know, textualism is widely regarded as a politically conservative methodology. (8) But, despite the prevalence of that charge, it has been relegated almost entirely to footnotes and passing barbs, and remains remarkably undertheorized. What, exactly, does it mean to say that textualism is conservative? Is it enough to observe that textualism's most dedicated practitioners on the federal bench are overwhelmingly conservative in their political orientation? (9) If so, how does one explain why textualism seems to hold a unique appeal for conservatives--and, further, why many conservative judges eschew textualism in favor of other methodologies, or follow an eclectic approach that borrows from several approaches while committing to none?

Rather than seeking to explain textualism's appeal to some conservative judges, critics have focused on its consequences. Textualism, we are told, injects an anti-regulatory bias into the interpretation of statutes. It therefore tends to constrict the scope of federal law. (10) Although critiques of this sort rarely spell out the causal story, the implication is that conservative judges are drawn to textualism--consciously or unconsciously--because it produces results in line with their policy preferences.

The claim that textualism is a conservative methodology offers an interesting twist on familiar arguments concerning the relationship between law and politics more generally. Legal realists long have argued that judges' decisions are driven primarily by their personal policy preferences. (11) Today, such arguments typically are associated with the so-called "attitudinal model" of judicial decision making, which focuses on Supreme Court Justices and "holds that the Supreme Court decides disputes in light of the facts of a case vis-a-vis the ideological attitudes and values of the justices." (12) Attitudinalists and other realists tend to focus on outcomes while dismissing the importance of legal reasoning. (13) That focus has drawn fire from legal scholars who suggest that some of the patterns that attitudinalists deem ideological may, in fact, reflect the influence of methodology and other "legal" factors. For example, while attitudinalists cite Justice Black's unflagging support for First Amendment rights as evidence of his liberalism, the decisions could just as easily be explained by the Justice's commitment to a strict construction of the "unequivocal command" of the First Amendment. (14) The notion that methodology is itself political suggests an answer to such challenges. If Justices choose particular interpretive approaches to pave the way to desired policy results, then attitudinalists are not mistaking law for politics--instead, it is politics all the way down.

Not surprisingly, Scalia and Garner reject the political critique of textualism as a "slander." (15) They argue that textualism "will sometimes produce 'conservative' outcomes, sometimes 'liberal' ones." (16) Like their critics, however, Scalia and Garner fail to develop the argument, 'or to confront the widespread association of textualism and conservatism in contemporary legal and political rhetoric. If textualism is apolitical, why is it so difficult to imagine Justice Kagan, for example, announcing that she has had a textualist epiphany? Why do the methodological battle lines, in both the federal judiciary and in legal academia, map so neatly along ideological divides?

This Review takes up those questions, exploring the connections between textualist methodology and conservative politics--and between methodological and political argument more generally. In an important sense, Scalia and Garner are correct: textualism is not inherently conservative in design, nor does it reliably produce conservative results. But if the theory of textualism is not conservative, the broader practice of textualism surely is. That practice encompasses not only judicial decisions but also the political and legal discourse that brought textualism to the public fore and that keep it there even as the space between textualism and its competitors continues to shrink. The link between textualism and conservatism was fused in the rise of the New Right in the 1980s, when conservatives embraced textualism in statutory interpretation (together with originalism in constitutional interpretation) as the antidotes to the "judicial activism" of the Warren and Burger Courts. Textualism and originalism were united in their appeal to judicial restraint and their challenge to the legal status quo. Adopting the language of methodology therefore gave Reagan-era politicians an efficient--and legal--means of critiquing existing law and pushing for legal change.

As it became clear that the "new textualism" (17) was a force for moving the law to the right, judges, academics, and others on the left responded with their own methodological prescriptions. The battle lines were drawn and, once in place, they demanded defenses. After more than two decades of methodological conflict, it is still commonplace to see the Justices divided over method as well as outcomes. Methodological disagreements spill over into cases that are otherwise unanimous, separating the Justices even when they agree on results. Academics continue to debate questions of abstract interpretive theory, even as the differences between the competing methodologies fade away. Such methodological cleavages on the bench and in the academy almost always replicate ideological divides. The result is deeply ironic: touted as a way to separate...

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