A Matter of Interpretation: Federal Courts and the Law.

• Author: Sunstein, Cass R.

By Antonin Scalia(*) et al. Princeton, N.J.: Princeton University Press, 1997. Pp. xiii, 159. $19.95.

INTRODUCTION: RULE-BOUND JUSTICE AND THE STATUTORY STATE

In 1982, Guido Calabresi published a provocative book, A Common Law for the Age of Statutes,(1) based on his Holmes Lectures at Harvard Law School. Judge Calabresi's basic argument was that the common law has certain virtues--above all, flexibility across time and space--that are at serious risk in a statutory era.(2) Judge Calabresi's central concern was to find a way to import the values of common law judgment into a legal fabric governed by statutory law. His most dramatic proposal was that courts should be given the authority to declare statutes that were out of step with the prevailing legal landscape void for "obsolescence."(3) Judge Calabresi's particular proposal has been very controversial, but it is of a piece with more standard views about statutory construction having common law origins: judge-made exceptions to plain language for absurd results; judicially developed "clear statement" principles; judicial invocation of statutory purpose in a way reminiscent of a precedent's "rationale"; judicial treatment of many statutes as the foundation for judge-made common law; and "dynamic" statutory interpretation.(4) And Judge Calabresi's views are reflected in the common law characteristics of much constitutional law, characteristics which have given rise to a general claim, usually meant as both description and praise, that constitutional law is merely a species of Anglo-American common law.(5)

The central essay in Justice Antonin Scalia's new book.(6) based on his Tanner Lectures at Princeton, offers an argument that is in many ways the converse of Judge Calabresi's. Where Judge Calabresi sought to celebrate the common law and to authorize courts to introduce far more of common law thinking into a statutory era, Justice Scalia seeks to demote, even to exorcise, the common law, to complain of its ascendancy in an age committed to the principles of democratic government and the rule of law. Hence the essay's title: Common-Law Courts in a Civil-Law System.(7) In Justice Scalia's view, the use of common law methods is simultaneously anachronistic and hubristic. It is anachronistic because it is out of touch with the values and operations of modern government.(8) The charge of hubris is the more serious one. Justice Scalia thinks that common law methods compromise democratic values, by allowing judges an excessive role in policymaking.(9) He also thinks that common law methods introduce a high degree of unpredictability, increasing judicial discretion and at the same time depriving others, citizens as well as legislators, of a clear background against which to work.(10)

Justice Scalia intends, then, to defend a species of democratic formalism. We might even say that Justice Scalia is the clearest and most self-conscious expositor of democratic formalism in the long history of American law. Justice Scalia is a democrat in the sense that much of his jurisprudence is designed to ensure that judgments are made by those with a superior democratic pedigree. Above all, he seeks to develop rules of interpretation that will limit the policymaking authority and decisional discretion of the judiciary. the least accountable branch of government. Justice Scalia is a formalist in the particular sense that he favors clear rules, seeks to treat statutory and constitutional texts as rules, and distrusts the view that legal texts should be understood by reference either to intentions or to canons of construction that live outside of authoritative texts.(11) Democratic formalism finds its interpretive foundation in textualism. Thus Justice Scalia writes: "Of all the criticisms leveled against textualism, the most mindless is that it is `formalistic.' The answer to that is, of course it's formalistic! The rule of law is about form . . . . Long live formalism. It is what makes a government a government of laws and not of men."(12)

As a judicial creed, democratic formalism is intelligible and coherent in part because it argues in favor of interpretive principles and statutory default rules that will create a clear background for Congress, in the process imposing the right incentives on lawmakers. Justice Scalia's preferred default rules are intended to make the law readily predictable and to ensure that Congress will legislate in the constitutionally preferred fashion.

Where does all this leave the common law? For the democrat and for the formalist, the common law raises many doubts. The common law, of course, owes its content not to electoral processes but to decisions by people who are mostly unelected.(13) And common law judges are free to eschew rules and to act on a case-by-case basis. Indeed, the glory of the common law is often said to consist in its particularism--its careful attention to the facts of the particular case, its provision of an individualized hearing for each litigant.(14) Justice Scalia's attack on the common law legacy is thus rooted in distrust of particularism--especially judicial particularism--and in enthusiasm for rulebound interpretation that relies, in both statutory and constitutional interpretation, on a single foundation: the meaning of the relevant legal text as it was understood at the time of enactment.(15)

This is an elegant book, and it is a great pleasure to read. My central objection is that Justice Scalia's argument on behalf of democratic formalism does not come to terms with three important problems for democratic formalism: the internal morality of the democratic ideal; the existence of reasonable, alternative, nonformalist approaches to interpretation, designed to limit judicial discretion, promote stability, and enhance democratic self government; and (most surprising) the place of administrative agencies in the structure of modern public law. It is not clear that democratic formalism actually promotes democracy, rightly understood. Moreover, there are other ways of limiting judicial power and judicial discretion, ways that are familiar to, even constitutive of, the common law tradition as it has come to be understood in the United States. The principal virtue of democratic formalism is that it may be the best way of promoting predictability,(16) but even here there are reasonable alternatives, and it is far from clear that predictability trumps all other values.

In a short, vivid essay of this kind, originally presented as a public lecture, Justice Scalia cannot be expected to have laid all doubts to rest, or to have answered all questions in legal theory. But his defense of his own position works too often by hyperbolic slippery slope arguments, by opposing democratic formalism to positions that no one really holds, and most of all by invoking the specter of untrammeled judicial control over political outcomes. It is as if those who reject Justice Scalia's particular approach hope to give, and inevitably will give, unelected judges the power to do whatever they wish. But the choice between democratic formalism and the real alternatives calls for more fine-grained and, in part, empirical judgments about the capacities of real-world institutions. If, for example, judges interpret statutes in accordance with the original meaning of their text, will legislative drafting be improved, and will legislatures correct obvious mistakes? If judges do not use legislative history, might ambiguous texts be interpreted by reference to the judges' own views about Policy and principle? If judges abandon the original understanding of the constitutional text, are there alternative positions that would limit judicial discretion and allow appropriate space for electoral politics? And just what is the role of administrative agencies, which might, in a post-Chevron(17) era, perform, and be authorized to perform, the role formerly carried out by common law courts? Justice Scalia's silence on the last question is especially disappointing: At this stage in American history, no treatment of legal interpretation is complete if it neglects the enormous de facto and de jure interpretive function of administrative agencies.

If a goal of a system of interpretation is to constrain judicial discretion, and particularly if we attend to the role of regulatory agencies, it is far from clear that Justice Scalia's approach is superior to the alternatives actually favored by the American tradition of public law. And if (as Justice Scalia rightly insists) a goal of a system of legal interpretation is to promote democratic self-government, it is not at all clear that Justice Scalia's approach is better than that favored by our tradition, which uses interpretive principles to promote democratic goals, not only in the area of statutory construction but also in administrative and constitutional law. A great defect of democratic formalism is that it identifies democracy with whatever happens to emerge from majoritarian politics. If we insist (with the Constitution's Framers)(18) that there is a difference between a well-functioning system of deliberative democracy and simple majoritarian politics, we may well favor principles of interpretation that promote that very system, perhaps by allowing administrative agencies some license to adjust text to circumstance, certainly through "clear statement" principles, and not least by invalidating outcomes that are inconsistent with what we might consider the internal morality of democracy.

In any case, this will be my basic argument here. Part I summarizes Justice Scalia's essay. Part II deals with the topic of statutory interpretation--Justice Scalia's particular passion and the highlight of his essay here. This part outlines the stakes, explores the great case of Church of the Holy Trinity v. United States,(19) and examines the role of administrative agencies in legal interpretation. Its principal theme is that...