A Matter of Interpretation: Federal Courts and the Law.

Author:Eskridge, William N., Jr.

A Matter of Interpretation: Federal Courts and the Law. By Antonin Scalia. Princeton, New Jersey: Princeton University Press. 1997. Pp. xiii, 159. $19.95.

In May 1997, the New York Knickerbockers basketball team was poised to reach the finals of its division in the National Basketball Association (NBA). The Knicks led the rival Miami Heat by three games to two and needed one more victory to win the best-of-seven semifinal playoff series. Game six would be in New York; with their star center, Patrick Ewing, playing well, victory seemed assured for the Knicks. A fracas during game five changed the odds. During a fight under the basket between Knicks and Heat players, Ewing left the bench and paced in the middle of the court, away from the fight. Rule 12A, Section IX(c), of the NBA Rules provided: "During an altercation, all players not participating in the game must remain in the immediate vicinity of their bench. Violators will be suspended, without pay, for a minimum of one game," commencing "prior to the start of their next game."(1) Applying the rule, NBA Commissioner David Stern suspended Ewing and another player for game six in New York, which the Knicks lost; two other players were suspended for game seven in Miami, which the Knicks also lost. Having lost the series, four games to three, the Knicks cried foul: the rule should not have been applied to Ewing because he did not leave the bench to join the altercation. The rule was not intended to apply to Ewing; it was not fair to apply the rule to someone who was not contributing to the fight; "we wuz robbed."

The foregoing argument, made not only by the Knicks but also in print by philosopher Ronald Dworkin and proceduralist Linda Silberman, both law professors at New York University,(2) reflects good old-fashioned common law reasoning from a rule to a new and perhaps unanticipated fact situation.(3) Justice Antonin Scalia's Tanner Lectures at Princeton University, published with commentaries and response by the author as A Matter of Interpretation, say humbug to all that. Apply the rule according to its plain, meaning. Do not consider the "intent" of its drafters.(4) Unfairness is irrelevant when the rule applies as a matter of plain textual meaning. Stern did the right thing and for the right reasons. Ewing must be suspended. He and his colleagues will know better than to leave the bench during the next melee.

The statutory analogue to the Case of the Wandering Basketball Player is the Case of the Imported Pastor. In Church of the Holy Trinity v. United States,(5) the Supreme Court, in 1892, interpreted a statute criminally prohibiting anyone from contracting with an "alien" to pay his transportation to the United States "to perform labor or service of any kind."(6) Although the Church had paid the way for The Reverend E. Walpole Warren to come to the United States to serve as pastor of its congregation, the Supreme Court created an exception to the statutory prohibition, common law style, for Christian ministers and, in dictum, for other "brain toilers." This is the only case discussed in the Tanner Lectures (pp. 18-23). The Court, argues Scalia, interpreted the law contrary to its plain meaning -- a minister is performing "labor or service" of some kind -- in order to fit what the Court considered the statute's purpose, or "spirit," as Justice David Brewer's evangelical opinion put it (p. 19). Bad. The Court divined the statutory spirit from committee reports accompanying the 1885 legislation; the reports asserted that the proposed law was only aimed at manual workers and not "brain toilers," and the report of the Senate committee lamented that the limitation would have been more explicit had there been time for amendment (pp. 19-20). Worse. The Court ended its exercise with an ode to the United States as a "Christian Nation," whose statutes presumptively should not be construed to thwart the exercise of religion (pp. 19-20). This is the worst, according to Scalia. The Holy Trinity Church Court got the Case of the Imported Pastor as wrong as the law professors got the Case of the Wandering Basketball Player wrong.

More generally, both the Tanner Lectures and Scalia's judicial opinions defend a hard-hitting "new textualism"(7) as the best, and perhaps only, legitimate approach to statutory interpretation. Scalia's main point is that a statutory text's apparent plain meaning must be the alpha and the omega in a judge's interpretation of the statute. The apparent plain meaning is that which an ordinary speaker of the English language -- twin sibling to the common law's reasonable person -- would draw from the statutory text. This general principle is not original with Scalia; the British House of Lords and Justice Oliver Wendell Holmes followed the same idea in the late nineteenth and early twentieth centuries.(8) Yet Scalia's theory really is a new textualism.

Theoretically, Scalia defends his approach based upon a strict formal separation of powers: the constitutional role of the legislature is to enact statutes, not to have intent or purposes, and the role of the courts is to apply the words and only the words, without regard to arguments of fairness or political equilibrium (pp. 9-13). This constitutional basis for the plain meaning rule gives it greater bite and may explain why Scalia tries to find or create a plain meaning for the tersest law. Scalia also invokes institutional reasons for his approach, as one which judges are best trained to accomplish and which protects against judicial usurpation. Finally, there is an economic dimension to Scalia's thinking: while the temptation to do justice ex post in every case is humanly appealing, disciplined judges should resist that temptation, because it ex ante sets up wasteful, usurpative incentives for everybody else (pp. 36-37). Scalia's wedding of formalist, institutionalist, and economic thinking in the undertheorized area of statutory interpretation is normatively powerful.

Doctrinally, the new textualism's most distinctive feature is its insistence that judges should almost never consult, and never rely on, the legislative history of a statute (pp. 29-37). The rejection of legislative history and insistence that judges follow meanings even when unreasonable contribute to the theme of the Tanner Lectures: common law approaches, emphasizing purpose, policy, and history, are not appropriate for statutory interpretation in the modern administrative state (pp. 9-14.). Consistent with this theme, Scalia has developed a rigorously text-based methodology that contrasts strikingly with the common law approach in Holy Trinity Church. Like Holmes, the new textualist starts with the meaning an ordinary reader would draw from the statutory language but delves more deeply than Holmes usually did into what other textual sources might teach us. Thus, the Scalian interpreter also considers which interpretation is most consistent with the statute as a whole; whether similar language has been used elsewhere in the U.S. Code and, if so, how it has been interpreted; and regular rules of grammar, syntax, and word use.(9) When textual analysis is done thoroughly, it can actually persuade a hostile audience, a feat hard to accomplish under other approaches to statutory interpretation.

Rhetorically, Scalia makes the stakes of statutory theory and practice well worth thinking and fighting about. The Tanner Lectures ringingly combine an ambitious insistence that statutory interpretation is important for the future of democracy (p. 9) and the rule of law (p. 25) with lively critique of the unsystematic way it is taught in law schools (pp. 14-15), practiced by attorneys and judges (pp. 18-22, 31), and theorized as either reconstructing the probable "intent" of the legislature (pp. 16-17) or resolving cases common-law style, so as to reach the most "desirable result" (pp. 12-13, 21-22). Scalia suggests that statutory interpretation can again be an objective "science" (p. 14) if properly done by honest textualists, and that the science of statutory interpretation can assure both democracy and the rule of law. "What intellectual fun all of this is!" (p. 7).

On the one hand, the new textualism has relatively few defenders in academe (a haven for the contextually inclined),(10) is treated skeptically and often dismissively by Scalia's colleagues on the Court,(11) and is appalling, to many members of Congress.(12) On the other hand, Scalia's theory dominates debate about statutory interpretation, is gathering more defenders in academe,(13) has one other fan on the Court (Justice Thomas) and influences the way all the other justices write their opinions and advocates argue their cases before the Supreme Court,(14) is increasingly popular in the state courts and among many federal judges,(15) and has a strong allure for Generation X law students.(16) If most scholars and colleagues are still skeptical that the new textualism "gets it right," Scalia can boast a postmodern triumph: the new textualism has been agenda-setting and a public relations hit.

The new textualism is successful primarily because it is familiar but simple, on its face neutral and normatively attractive, objective, and relatively nonreflexive. Everyone believes that statutory text is the starting point for construing statutes, but judges and scholars have elaborated upon this familiar rule to create complexities that dilute the rule. Scalia takes what is familiar and cuts away the detritus, such as qualifications to plain meaning when plain meaning is contrary to legislative intent or purpose or constitutional policy. What is left is simplicity itself: when construing statutes, consider the text, the whole text, and nothing but the text. Period. This is refreshingly easy to understand and would seem to be straightforward to apply. Because textualism appears relatively easy to apply and scientific, it strikes one as more objective and determinate...

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