The Rule of Law: More Than Just a Law of Rules

• Publication year: 2021
• Citation: Vol. 97

97 Nebraska L. Rev. 925. The Rule of Law: More than Just a Law of Rules

The Rule of Law: More than Just a Law of Rules

Donald B. Verrilli, Jr.(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 925

II. The Rule of Law as a Law of Rules .................... 927

III. Good Faith Disagreement Versus Illegitimacy ......... 928

IV. Rule of Law Myopia ................................... 930

V. Hope ................................................. 934

I. INTRODUCTION

I intend to talk today about something that everyone seems to be talking about these days: The rule of law, or more precisely, what the rule of law means to us and what it should mean to us. And I want to acknowledge at the outset that the discussion may be fraught. This week has been brutal for those of us who care deeply about, and want to believe deeply in, the integrity of our legal institutions. Emotions are running especially high, feelings are especially raw, and partisan fury is coursing through the body politic. For the last 24 hours, I've

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gone back and forth over [if] it would be better to just ditch this topic entirely and talk about something else. But in the end I think what we are going through right now makes it more important than ever to talk about our commitment to "the rule of law," what it does and what it should mean. I have some strong views about this, and I am going to express those views. I will do my best to do so respectfully, and I hope constructively.

So let me start by summarizing what I intend to say. One can view the deep divisions in our legal culture, and one can view this confirmation battle, in partisan terms: Conservatives want one set of judicial outcomes, liberals want a different set of judicial outcomes and what we are witnessing is just a struggle about who is going to be in charge. All the rest is just posturing. But I think something deeper is going on.

Over the course of three decades or so, the idea of "the rule of law" has come to have a particularly focused meaning for judges, academics and practitioners who are jurisprudential conservatives. Due in large part to the influence of Justice Scalia, the rule of law has become synonymous with a formalist kind of textualism in statutory construction and with originalism in constitutional interpretation. The idea is that these interpretive methods ensure fidelity to the rule of law- they ensure that we remain a nation of laws and not men in the sense that judges apply law rather than make it; they follow the dictates of the People expressed in the Constitution and in statutes, rather than substituting their own moral or policy judgments. In Justice Scalia's memorable phrase, they have come to view the rule of law principally as a law of rules.

That set of ideas has a great deal of force and it has had a disciplining effect on the way all of us approach legal text that I think is positive. But I want to suggest that [] the dominance of the "rule of law as a law of rules" idea in conservative jurisprudence has produced at least two unfortunate consequences, one that is troubling but manageable and one that, at this moment in our history, may prove to be disastrous. The first unfortunate consequence is that it promotes divisiveness in the legal culture. It defines other interpretive methods, and the outcomes they produce, as illegitimate and not merely the product of good faith disagreement. Second, and more pressingly, it induces myopia. In this very moment in our history, many "rule of law as a law of rules" adherents are acting in a manner that suggests that they value the confirmation of judges who share their interpretive commitments as a higher value than protection of the integrity of our legal institutions, the legitimacy of which rests on a more fundamental understanding of what the rule of law means. And I say that this way of thinking may prove disastrous because the integrity of our interpretive methods ultimately will mean very little if the integrity of

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the institutions chiefly responsible for enforcing and adjudicating the law lies in ruins. I hope to suggest a way of thinking about a shared commitment to rule of law values that can address both of these harmful consequences.

II. THE RULE OF LAW AS A LAW OF RULES

Let me frame the discussion by saying just a few words to flesh out what I mean by the phrase "the rule of law as a law of rules." In the late 1980s, Justice Scalia published several essays setting forth his defense of textualism and originalism as the only legitimate methods of interpretation. One of them was titled "The Rule of Law as a Law of Rules." At the risk of oversimplifying, Justice Scalia sought to demonstrate that traditional common law methods of legal reasoning-in which judges shape the law incrementally by making judgments informed by precedent, case-specific factual nuances, and considerations of policy, and consequences should be eschewed when judges interpret legal texts-could not legitimately be applied to interpret statutes or to interpret the Constitution.

When a judge interprets a statute, the judge should give the words of the text their ordinary meaning, no more and no less. The judge should not seek a different meaning in the legislative history or refuse to give the words their ordinary meaning because doing so would produce consequences the judge considers ill-advised or untoward.

And when a judge interprets a provision of the Constitution, the judge should interpret that provision in accordance with the original public meaning of the constitutional text, again no more or no less. The judge should not seek to give the words new or different meaning based on the conditions or understandings of our own time, based on the evolution over time of our understanding...