Scalia and judicial interpretation

Among the most annoying things about Antonin Scalia is his absurd and supercilious belief that while other judges are interpreting the law, he is simply reading the text and leaving himself out of the equation.  As if there’s no interpretation involved in reading text.  Oh, I get so tired of people acting like he’s so damn brilliant.  Seems like he’s brilliant at convincing people he’s smarter than he actually is.  Anyway, nice post from Jeffrey Toobin regarding textualism and the latest Obamacare case:

The case is the latest chapter of the legal assault on Obamacare, but it is also the most prominent instance of a larger fight over an ascendant legal theory known as textualism. This approach, which was pioneered and advocated by, most prominently, Justice Antonin Scalia, holds that courts should interpret laws based solely on their own terms, and not on the basis of the intent of the legislators who create the statute. As Scalia has written, “We are governed by laws, not by the intentions of legislators.” The words of the statute should always prevail, Scalia believes, over “unenacted legislative intent.”

This all sounds reasonable enough in the abstract. But what happens when the text of the law is ambiguous, or if one part of the text conflicts with another? …

Moreover, [author of a new book on textualism, Robert] Katzmann makes the apt point that textualism is especially inappropriate for judges who, like Scalia, profess to believe in judicial restraint—in the idea, that is, that judges should defer to the elected branches of government. Katzmann writes that “excluding legislative history is just as likely to expand a judge’s discretion as reduce it…. When a statute is ambiguous, barring legislative history leaves a judge only with words that could be interpreted in a variety of ways without contextual guidance as to what legislators may have thought. Lacking such guidance increases the probability that a judge will construe a law in a manner that the legislators did not intend.” …

Scalia and other textualists often assert that their approach drains their judgments of political content: they simply read the statutes, consult a dictionary, and render their verdicts. As the Halbig case demonstrates, textualism is as politically fraught as any other approach to judging. The Halbig case is not an attempt to police unclear drafting but rather the latest effort to destroy a law that is despised by many conservatives. The five appellate judges who voted to uphold the law were originally nominated by Democratic Presidents; the two who voted against it were chosen by Republicans. This reflects the real division over the Affordable Care Act–a political, rather than judicial, conflict. Textualism is not a dispassionate guide to a result; it’s merely a vehicle to a preferred outcome—the destruction of Obamacare.


About Steve Greene
Professor of Political Science at NC State

2 Responses to Scalia and judicial interpretation

  1. John F. says:

    I submit that intelligence is at the heart of the issue with Scalia. Powerful minds have the greatest propensity to rationalize their irrational beliefs into intelligible arguments while ignore their hypocrisy when their line of reasoning is misapplied or applied inconsistently. In fact, I think there was a study put out recently that demonstrated that rebuttal arguments based in fact often strengthen resolve disproportionately related to one’s intellectual capacity.

    With regard to legislator’s intent, I think with the benefit of hindsight we can formulate legislative solutions to the strict constitutionalists arguments which contend that we should seek to understand the intent of the Constitution which Scalia and others have argued should be jurist’s focus (yes, hypocritically countering the textualist argument that intention should not be a factor). If legislators were required to write an intentions addendum attached to laws in plain English it may help to instruct future interpretation of the law.

  2. John Walks says:

    Let’s be clear; it’s all politics. The real problem is the prescriptive political spectrum in which these issues are contemplated by two factions of the same party: Wall Street.

    As for interpretation, it’s simply axiomatic to say that it’s all we have. I do agree, however, with “John F” above, in that laws are generally written with too much ambiguity. Although the other half of that statement is that it is often intentionally so…you got it, so the justice system can apply ‘interpretation’.

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