Of lions and bears, judges and legislators, and the legacy of Justice Scalia.

AuthorGorsuch, Neil M.
PositionSupreme Court Justice Antonin Scalia

If you were looking for a talk tonight about the maddening maze of our civil justice system--its exuberant procedures that price so many out of court and force those in it to wade wearily through years and fortunes to win a judgment--you came to the right place. Almost.

When Professor Adler kindly asked me to share a few words with you tonight, that was my intended topic. I'd just finished penning opinions in two cases. One was older than my law clerks and had outlived many of the plaintiffs. The other had bounced up and down the federal court system for so long it was nearly as ancient as Cleveland's championship drought. You know you're in trouble when the Roman numeral you use to distinguish your opinion from all the others of the same name draws closer to X than I. Needless to say, I was eager to talk about civil justice reform.

But that was then and this is now. Since Professor Adler extended his invitation, the legal world suffered a shock with the loss of Justice Scalia. A few weeks ago, I was taking a breather in the middle of a ski run with little on my mind but the next mogul field when my phone rang with the news. I immediately lost what breath I had left, and I am not embarrassed to admit that I couldn't see the rest of the way down the mountain for the tears. From that moment it seemed clear to me there was no way I could give a speech about the law at this time without reference to that news.

So tonight I want to say something about Justice Scalia's legacy. Sometimes people are described as lions of their profession and I have difficulty understanding exactly what that's supposed to mean. Not so with Justice Scalia. He really was a lion of the law: docile in private life but a ferocious fighter when at work, with a roar that could echo for miles. Volumes rightly will be written about his contributions to American law, on the bench and off. Indeed, I have a hard time thinking of another Justice who has penned so many influential articles and books about the law even while busy deciding cases. Books like A Matter of Interpretation (1) and Reading Law (2) that are sure to find wide audiences for years to come.

But tonight I want to touch on a more thematic point and suggest that perhaps the great project of Justice Scalia's career was to remind us of the differences between judges and legislators. To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society. That judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be--not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best. As Justice Scalia put it, "[i]f you're going to be a good and faithful judge, you have to resign yourself to the fact that you're not always going to like the conclusions you reach. If you like them all the time, you're probably doing something wrong." (3)

It seems to me there can be little doubt about the success of this great project. We live in an age when the job of the federal judge is not so much to expound upon the common law as it is to interpret texts--whether constitutional, statutory, regulatory, or contractual. (4) And as Justice Kagan acknowledged in her Scalia Lecture at Harvard Law School last year, "we're all textualists now." (5) Capturing the spirit of law school back when she and I attended, Justice Kagan went on to relate how professors and students often used to approach reading a statute with the question "[G]osh, what should this statute be," rather than "[W]hat do the words on the paper say?" (6)--in the process wholly conflating the role of the judge with the role of the legislator. Happily, that much has changed, giving way to a return to a much more traditional view of the judicial function, one in which judges seek to interpret texts as reasonable affected parties might have done rather than rewrite texts to suit their own policy preferences. And, as Justice Kagan said, "Justice Scalia had more to do with this [change] than anybody" because he "taught" (or really reminded) "everybody how to do statutory interpretation differently." (7) And one might add: correctly.

I don't think there is any better illustration of Justice Kagan's point than the very first opinion the Supreme Court issued after Justice Scalia's passing. That case--Lockhart v. United Stated (8)--involved the question how best to interpret a statute imposing heightened penalties for three types of offenses--"[1] aggravated sexual abuse, [2] sexual abuse," and "[3] abusive sexual conduct involving a minor or ward." (9) The majority opinion by Justice Sotomayor relied on the rule of the last antecedent and held that the phrase at the end of the sentence--"involving a minor or ward"--modifies only the last offense listed. So that the statute's penalties apply whenever there is aggravated sexual abuse, or sexual abuse, or whenever there is abusive sexual conduct involving a minor or ward. (10) In dissent, Justice Kagan noted that, in "ordinary" English usage, the rule of the last antecedent bears exceptions and that sometimes a modifying phrase at the end of a sentence reaches further back to earlier antecedents too. (11) And, in Justice Kagan's estimation, an ordinary and average reader of the language at issue here would have thought the phrase "involving a minor or ward" does just that, modifying not just its immediate but all three of its antecedents. So for the statutory penalties to apply, Justice Kagan argued, the government must always prove some kind of sexual abuse involving a minor. (12) In support of her suggestion that an exception rather than the rule should apply to this particular statutory language, Justice Kagan offered this gem of an analogy: "Imagine a friend told you that she hoped to meet 'an actor, director, or producer involved with the new Star Wars movie.' You would know immediately that she wanted to meet an actor from the Star Wars cast--not an actor in, for example, the latest Zoolander." (13) So too here, the Justice reasoned.

As you can see, the two sides in Lockhart disagreed pretty avidly and even colorfully. But notice, too, neither appealed to its views of optimal social policy or what the statute "should be." Their dispute focused instead on grammar, language, and statutory structure and on what a reasonable reader in the past would have taken the statute to mean--on what "the words on the paper say." In fact, I have no doubt several Justices found themselves voting for an outcome they would have rejected as legislators. Now, one thing we know about Justice Scalia is that he loved a good fight--and it might be that he loved best of all a fight like this one, over the grammatical effect of a participial phrase. If the Justices were in the business of offering homages instead of judgments, it would be hard to imagine a more fitting tribute to their colleague than this. Surely when the Court handed down its dueling textualist opinions the Justice sat smiling from some happy place.

But of course every worthwhile endeavor attracts its critics. And Justice Scalia's project is no exception. The critics come from different directions and with different agendas. Professor Ronald Dworkin, for example, once called the idea that judges should faithfully apply the law as written an "empty statement" because many legal documents like the Constitution cannot be applied "without making controversial judgments of political morality in the light of [the judge's] own political principles." (14) My admirable colleague, Judge Richard Posner, has also proven a skeptic. He has said it's "naive" to think judges actually believe everything they say in their own opinions; for they often deny the legislative dimension of their work, yet the truth is judges must and should consult their own moral convictions or consequentialist assessments when resolving hard cases. (15) Immediately after Justice Scalia's death, too, it seemed so many more added their voices to the choir. Professor Laurence Tribe, for one, wrote admiringly of the Justice's contributions to the law. (16) But he tempered his admiration by seemingly chastising the Justice for having focused too much on the means by which judicial decisions should be made and not enough on results, writing that "interpretive methods" don't "determine, much less eclipse, outcome[s]." (17)

Well, I'm afraid you'll have to mark me down as naive, a believer that empty statements can bear content, and an adherent to the view that outcomes (ends) do not justify methods (means). Respectfully, it seems to me an assiduous focus on text, structure, and history is essential to the proper exercise of the judicial function. That, yes, judges should be in the business of declaring what the law is using the traditional tools of interpretation, rather than pronouncing the law as they might wish it to be in light of their own political views, always with an eye on the outcome, and engaged perhaps in some Benthamite calculation of pleasures and pains along the way. Though the critics are loud and the temptations to join them may be many, mark me down too as a believer that the traditional account of the judicial role Justice Scalia defended will endure. Let me offer you tonight three reasons for my faith on this score.

First, consider the Constitution. Judges, after all, must do more than merely consider it. They take an oath to uphold it. So any theory of...

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