The tragedy of Justice Scalia.

AuthorBerman, Mitchell N.
PositionSupreme 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, 149. $18.95.

INTRODUCTION

Justice Antonin Scalia died last February, at the age of seventy-nine. Having served nearly three decades on the Supreme Court, he was, by the time of his death, its best known and most influential member, the subject of two substantial biographies, (1) hundreds of academic articles, (2) and possibly thousands more in the popular press. If the most visible and vocal justice of the past quarter century, Scalia was also the most polarizing--the judicial equivalent of stinky cheese. (3)

Given the magnitude of Scalia's renown and the intensity of the passions he has engendered, it would be folly to advance in this space any bold new thesis on his jurisprudence or judicial legacy. My ambitions, accordingly, are less grand. They are to offer an account of his central jurisprudential claims, the arguments he marshaled, and the difficulties they encountered, in a fashion that might enable partisans on both sides of today's legal, cultural, and political divides to see a little more clearly at least some of what their opponents see--the other side of Scalia's legacy. I will try to accomplish that task by concentrating on his Tanner Lectures delivered at Princeton two decades ago and published, complete with scholarly comments and his response, as A Matter of Interpretation: Federal Courts and the Law. You might say that my modest goal for this twenty-year retrospective on Scalia's best-known and most important book is to render Justice Scalia two-dimensional.

Because I will try to make a case both for what was truly great and for what was profoundly flawed about Scalia the jurist, the account that follows depicts him as a tragic figure. That is not a novel characterization. (4) But it remains disappointingly marginal. Too often, Scalia's critics demonize him as a simple villain, (5) while his acolytes glorify him as a paladin without warts. (6) These are disturbingly partial visions. Commentators who remain blind to the truths that others see vividly will never adequately understand the complex legacy of this complex man.

But that is not all. Although tragedies and tragic figures abound in life, tragedy's natural home is in the theater. Tragedies are performed for an audience. And the power, value, and meaning of tragedy "lies in its capacity to elicit the audience's response." (7) Now, precisely how tragedy should affect an audience, or precisely what the audience is supposed to learn, is controversial. If theorists of tragedy agree on anything, it's that, while a concept of tragedy has been vital in Western culture since ancient Greece, its content, assumed functions, and associated norms, have varied across time and place. (8) Still, there are lessons we can learn--not only about him, but also about our own condition--by understanding Scalia in tragic terms. Or so I hope to show.

  1. SCALIA'S ARGUMENT

    A Matter of Interpretation is a short book. Scalia's own contributions to it are shorter still. His initial text runs only forty-five pages (pp. 3-47), and his response to four distinguished commenters (historian Gordon Wood, philosopher of law Ronald Dworkin, and legal scholars Mary Ann Glendon and Laurence Tribe) adds another twenty (pp. 129-49). Consistent with its brevity, Scalia's arguments are straightforward. They contain both critical and constructive elements.

    Let's take the critical component first. Judges, Scalia insists, should have a theory of what they are doing and ought to be doing when interpreting authoritative legal texts. But, by and large, the American judiciary lacks any such theory. The "science of construing legal texts" has fallen into neglect (p. 3). That is sad.

    "Even sadder," he adds, "is the fact that the American bar and American legal education, by and large, are unconcerned with the fact that we have no intelligible theory" (p. 14). Devising, extending, and applying common law rules are no longer the principal occupations of American judges, let alone of federal judges. Most of their work today involves the interpretation of texts promulgated by others--statutes, regulations, ordinances, and constitutions. Yet American judges have no articulable theory to guide their efforts and don't seem much to care.

    Paired with this criticism are what Scalia modestly describes as "suggestions for improvement" (p. 3). They include a general premise and a particular reform proposal. The general premise holds that constitutional and statutory interpretation are of the same genus and should be subject to the same rules and principles (pp. 37-38). Scalia's proposed "methodology" (p. 133) states that judges should endeavor to discern and follow the text's original meaning with the sole caveat that, under the doctrine of stare decisis, they should sometimes adhere to erroneous judicial decisions "that are effectively irreversible" (p. 138).

    That's his view in a nutshell. Of course, Scalia supports his methodological proposals with arguments. Starting with his arguments for approach to statutory interpretation, they can be parsed as follows (where "T" stands for "textualism"):

    (T1) (a) In statutory interpretation, the principal alternative to following the meaning of the text (textualism) is following "the intent of the legislature" (p. 16).

    (b) When interpreters speak of following "the intent of the legislature," what they really mean is that judges should follow "the intent that a reasonable person would gather from the text of the law," in context (pp. 16-17).

    (T2) But there is a practical worry: "[Y]our best shot at figuring out what the legislature meant is to ask yourself what a wise and intelligent person should have meant; and that will surely bring you to the conclusion that the law means what you think it ought to mean" (p. 18).

    (T3) Therefore, as a practical matter, the only available alternative to textualism in statutory interpretation is for the judge to follow what she thinks the statutory text ought to mean (pp. 17-18).

    (T4) Plainly, it is not compatible with democracy for judges to interpret statutes in accordance with what they believe the statutory text ought to mean (p. 22).

    (T5) Therefore, judges should attend only to what the text does mean, which is necessarily what it originally meant. (9)

    Scalia's argument about constitutional interpretation follows the same basic structure ("O" is for "originalism"):

    (O1) In constitutional interpretation, the principal alternative to following what the text originally meant (originalism) is following the text's current meaning (p. 38).

    (O2) But there is a practical worry: your best shot at figuring out the constitutional text's current meaning is to consult "what it ought to mean" (p. 39).

    (O3) Therefore, as a practical matter, the only available alternative to originalism in constitutional interpretation is for the judge to follow what she thinks the constitutional text ought to mean. (10)

    (O4) Plainly, it is not compatible with democracy for judges to interpret the Constitution in accordance with what they believe the text ought to mean."

    (O5) Therefore, judges should attend only to what the constitutional text does mean, which is necessarily what it originally meant. (12)

  2. CRITIQUE

    What can we say about Scalia's affirmative position, his textual originalism? This cannot be the place for a full-blown assessment. Instead, I will try to make clear the most fundamental worries or difficulties that Scalia's affirmative positions on both statutory and constitutional interpretation confront.

    The root problem is that Scalia is very loose--a critic might say "careless" or even "sloppy"--with the core concepts that interest him and that he repeatedly invokes. These core concepts are the text, the meanings of the text (what the text says or communicates), and the law to which the text gives rise. In short, Scalia invites us to reflect on text, meaning, and law. These are three different types of entities, yet Scalia routinely conflates them.

    There are many nuances in this area, but we needn't strive for precision. Roughly: text is an arrangement of signs and symbols; meaning is conveyed, communicated, or carried by the signs or symbols that the text comprises; (13) law is the set of norms--rights, duties, powers, permissions--that a legal system delivers or comprises. (14)

    Here's proof that text is not the same as either meaning or law: different texts can have the same meaning and can give rise to the same legal obligations or rules. Consider a variation on an example that Scalia provides--a statute or ordinance that reads, "children under twelve may enter free" (p. 25). Whatever, exactly, this text means, and whatever legal permissions and obligations it creates, it is exceedingly likely that it bears the same meaning, and gives rise to the same law, as does a text in a sister jurisdiction that reads "guests twelve years old and older must pay an admission fee." The texts are indubitably different: they share not a word in common. Yet it is at least plausible--and, to some people, obvious--that they have the same meaning and give rise to identical law. Therefore, text is not the same as either meaning or law. Also, legislatures sometimes amend a statute, not to change the law, but to clarify what the law is. That such a maneuver at least occasionally succeeds establishes again that identical legal norms can correspond to non-identical text.

    And here's how we know that the meaning of an authoritative legal text is not the same as the law to which it gives rise: we can sensibly ask whether the law is what the text means. The proposition that the law is the meaning of the text represents a substantive claim, not a tautology. Following Ronald Dworkin, let us call the facts that constitute legal norms the "grounds of law." (15) It is a substantive question what the grounds of...

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