Justice Scalia and the idea of judicial restraint.

Author:Manning, John F.
Position:Supreme Court Justice Antonin Scalia - Book review

A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW. By Antonin Scalia. Princeton and Chichester: Princeton University Press. 1997. Pp. xiii, 159. $18.95.


When one thinks about Justice Antonin Scalia's legacy, it is tempting to focus on his role in promoting statutory textualism and constitutional originalism. He pressed these related approaches with surprising success in a legal culture that had not taken either idea all that seriously before his arrival on the Court. (1) He accomplished this feat, in part, by developing the affirmative claim that taking the text seriously best respects the democratic process. (2) For him, if a lawmaking body goes to the trouble of reducing its policies to writing through a carefully prescribed process, then common sense dictates that a faithful interpreter must ascertain, as accurately as possible, the meaning of the words the lawmaker has chosen. (3)

Perhaps no less important, however, was his negative claim about appropriate limits on judicial power in our system of separated powers. Every theory of interpretation entails a theory of lawmaking and of adjudication. (4) Justice Scalia's was no exception. Much of his theory of adjudication built on what he took to be a constitutionally warranted view of judicial restraint. (5) In the Tanner Lectures he published as part of A Matter of Interpretation: Federal Courts and the Law, (6) his defense of textualism and originalism rested heavily on a critique of the "common law" mindset that he saw federal judges bringing to statutory and constitutional interpretation (pp. 3-14, 16-18, 21, 25, 28, 36, 38-39, 45-46). In this account, as in many of his most arresting opinions, (7) Justice Scalia exploited an apparent cultural suspicion of judicial discretion--especially the kind that judges exercised sub rosa, as in the guise of legislative intent or living constitutionalism. (8) If our system of government makes the democratically accountable branches primarily responsible for lawmaking, he did not want the federal judiciary to make an end run around the democratic process by exercising common law discretion "to make the law" (pp. 6, 10).

What did Justice Scalia mean by that? Certainly, he understood that judges necessarily exercise some discretion when they decide cases. (9) It is doubtful, therefore, that he worried about what Ronald Dworkin called "weak" discretion--the kind that judges routinely exercise whenever "the standards [they] must apply cannot be applied mechanically but demand the use of judgment." (10) Instead, as many of Justice Scalia's opinions suggest, (11) he resisted discretion in Dworkin's "stronger sense"--the variety exercised when a judge's decision is not meaningfully "bound by standards" external to his or her own authority. (12) To put it crudely, Justice Scalia thought it wrong, in a constitutional democracy, for his Court to determine the rights and duties of the populace based on little more than the morals, conscience, or policy predilections of five unelected, life-tenured justices. (13) Hence, in area after area, Justice Scalia pressed his Court to ground its decisions in some source of authority external to the judge's will--in text, original meaning, longstanding legal tradition, or widespread social practice. (14) For convenience, I call this theory of judicial restraint the "anti-discretion principle."

This view of Justice Scalia's approach, it should be said, is not the same as the frequently expressed view that he cared, above all else, about rules qua rules--about devising clear, self-constraining doctrines even when applicable texts, properly read, invited the judiciary to exercise common law powers. (15) On that premise, his concern with "discretion" centered more upon limiting free-form judicial policymaking than upon rooting judicial decisions in legitimate external authority. (16) That position, I think, is misplaced. Although it is true that Justice Scalia's Holmes Lecture expressed a strong preference for rule-like judicial decisions--and that he often pressed for doctrinal approaches congenial to that view (17)--I argue here that his judicial philosophy cut deeper than a mere preference for rule-like rules of decision. In particular, I contend that an insistence upon decisional justifications external to the judges' will, and not a naked preference for rules, provided the central grounding for all of Justice Scalia's commitments--not only his affinity for rule-like doctrinal tests, but also, more fundamentally, his commitments to textualism, originalism, and a tradition--or practice-based approach to unenumerated rights.

This Review explores Justice Scalia's idea of judicial restraint. Starting from Justice Scalia's own account of his judicial philosophy in A Matter of Interpretation, Part I suggests that his theory of judging--in particular, his critique of common law discretion--accounts for a surprisingly large element of his textualism and originalism. Using mainly opinions from Justice Scalia's early years on the Court, Part II argues that his anti-discretion principle was an independent value that swept more broadly than his core commitments to textualism and originalism, standing alone.

Part III offers tentative thoughts about Justice Scalia's theory of judicial restraint. Section III.A considers two puzzles. First, as others have noticed, even though Justice Scalia's anti-discretion principle is ultimately a theory of judicial power, he does not focus his justification upon any sort of detailed account of Article Ill's original understanding. (18) Second, applying Justice Scalia's anti-discretion principle itself invites judicial discretion. Because no one, including Justice Scalia, would deny that judges exercise some discretion when they decide statutory or constitutional cases, an anti-discretion principle requires judges to answer the elusive question of how much is too much. But that line-drawing exercise itself entails judicial discretion.

Section III.B then speculates about why Justice Scalia's campaign against judicial discretion got traction despite those puzzles. I suspect that much of his influence came at the level of close analysis rather than high theory. With an exceptional capacity to deconstruct judicial reasoning, Justice Scalia could reveal discretion long understood as something more constrained and objective. If he correctly intuited that an important strain in the legal culture mistrusted broad judicial discretion, then merely exposing such discretion could do much of the work for him. In short, he may have set a mood for the Court, even if his anti-discretion principle could not be reduced to an exact formula for judicial decision.


    A Matter of Interpretation shows that Justice Scalia's theory of interpretation was not motivated solely, or perhaps even primarily, by his felt obligation to the words chosen by democratic lawmakers. His text-based approach also rested on, and sought to implement, his anti-discretion principle. Unless the Constitution or a statute clearly authorized judges to act on their own sense of the good, Justice Scalia insisted that they ground decisions in some form of constraint external to the judges' own preferences. This Part sketches the theory of judicial restraint elaborated in his first book and early academic writings.

    1. The Common Law Versus the Rule of Law

      The very first pages of A Matter of Interpretation show that Justice Scalia's primary concern is with the post-realist, common law mindset that had taken hold in American law (pp. 3-14). He wrote that, in contrast with an earlier time in which common law judges plausibly saw themselves as "mere expositors of generally accepted social practices" (p. 4), today's post-realist culture "acknowledge[s] that judges in fact 'make' the common law." (19) On that view, the common law judge's job is really that of "playing king--devising, out of the brilliance of one's own mind, those laws that ought to govern mankind" (p. 7). Hence, if Hadley v. Baxendale holds that a carrier is not liable for the consequential damages suffered by its customer because of a delayed delivery, (20) the next case might just as easily hold that such damages will lie if the customer gave specific notice of the expected losses. (21) From there, a common law judge, free of any text, might add a "privity of contract" requirement to the Baxendale rule and then craft sensible exceptions to that requirement as well. (22) In other words, "the common-law ... mind-set" invites the judge to ask: "What is the most desirable resolution of this case, and how can any impediments to the achievement of that result be evaded?" (p. 13).

      Justice Scalia thought this judicial attitude profoundly antithetical to the ambitions of democratic self-governance. And that conviction informed his justifications for statutory textualism and constitutional originalism.

    2. Textualism and the Common Law Method

      In the area of statutes, Justice Scalia targeted the Court's preference, typified by the Holy Trinity case, (23) for enforcing the "spirit" rather than the "letter" of a statute (pp. 18-23). According to Holy Trinity Church v. United States and its ilk, Congress cannot craft generally worded texts that anticipate, and provide for, all contingencies that may arise in the life of a statute. (24) So when a statute as written seemed at odds with the mischief at which it was directed, with deeply felt social values, or with plain old common sense, the Court in that era presumed that Congress had "intended" something other than what it had written.

      Justice Scalia's central critique of Holy Trinity was that following presumed legislative "intent" rather than enacted text is "incompatible with democratic government" (p. 17). Simply put, a faithful agent must respect the words Congress selected. Quite apart from that position, however, Justice Scalia stressed "that, under the guise...

To continue reading