First Among Equals (6 page)

On the social-issues front as well, the Court's widely discussed opinion in June 2000 in the Boy Scouts case — whether the Boy Scouts could exclude a gay-rights activist as an assistant scoutmaster—instructively reminded observers of the chief justice's instinctive conservatism. On social issues, the chief is reliably traditional. He will not use judicial power to alter long-standing social institutions.

This, then, appeared to be the chief's guiding philosophy: No upsetting the apple cart. That, it seems, has been at the core of the chief's mission over the course of his fifteen years in the center seat. No wild gyrations if he can help it, which in its own way is a “conservative” approach even if it does not necessarily lead to “conservative results.” To be sure, there remains a flicker of the flame that burned brightly during his days as a franchise junior member of the Court, the justice on whom Chief Justice Burger so heavily relied. In particular, Chief Justice Rehnquist remains quite eager to cure certain pivotal excesses (as he sees it) in the law, most particularly the unspeakably unacceptable
Roe v. Wade
and church-state decisions infected with an anti-religious freedom strain.

Nonetheless, when taken in the entirety of his work over the past fifteen years, Rehnquist as chief justice appears willing to accept much of modern-day constitutional law. He has, in surprising ways, been willing to follow principles of
stare decisis
—even if, as with
Miranda,
he wouldn't have agreed with the case to begin with. This, then, is the chief as judicial pragmatist, a respecter of legal precedent, wary of sudden change. He has set the tone of the current Court.

“He has been called the Arnold Schwarzenegger of the American judiciary.” Graham Zellick, the vice chancellor of the University of London, got the audience's attention with his unexpected, clever introduction of the Supreme Court's most colorful, quotable member. Justice Antonin Scalia had swept into London in the summer of 2000 to make several summertime speeches, this one a dinner address to a human-rights seminar. The next day, he would be moving about London with Lord Wolff, England's highest judge and one of the justice's many friends across the Atlantic.

As usual, the justice spoke without notes, revealing himself to be the natural teacher he is, witty, clever, and easy to understand. “I hate to be the skunk at the garden party,” he said, obviously relishing the role. He had come from Vienna with a warning. Beware of sweeping statements of human rights, however noble and uplifting, when the enforcement mechanism will be an unaccountable judiciary. The ancient law of England and Wales, which the United States had inherited, was soon to have formally incorporated into it a super-layer of European human-rights law, effective October 2, 2000. The “New Labor” government of Tony Blair had warmly embraced the concept with little debate or discussion. Now the clock was ticking on British control of its own centuries-old body of law.

The Scalia theme was a familiar one. It transcended national boundaries. Be fearful, he suggested, of putting power in a judiciary—by design unaccountable to the people—to interpret “rights.” Although protecting human rights is a noble goal, judges in interpreting a codified set of “rights” can—and do—fashion social policies that are then removed from the arena of democratic debate. The danger, Justice Scalia emphasized, is fundamental in a democratic society; judicial power tends to rob the people of the ability to decide for themselves how they would live and what kind of society they would have.

Justice Scalia thus raised the enduring issue before a constitutional court charged with interpreting the meaning of the Constitution. It is on this issue that the justices of the Supreme Court tend, without much open discussion, to divide sharply. Antonin Scalia takes a side in this debate, and he tirelessly trumpets it as he did on a summer evening in London. Of the sitting members of the Court, Justice Scalia has articulated the most systematic view of the way judges should go about interpreting the Constitution. His vision has by no means predominated; this is not the Scalia Court. The Court today is more of a centrist Court, and Justice Scalia is not a centrist. But the Supreme Court—and American constitutional law more generally—has been strongly influenced by his views. Scalia's express aim is to curb judicial power and maximize democratic self-government.

Although summarized in his remarks in London, the most comprehensive statement of Scalia's philosophy is found in his 1997 essay
A Matter of Interpretation.
His point is simple: The justices of the U.S. Supreme Court inherited a legal culture that we can call, simply, the common-law tradition. That tradition developed in England and migrated to the United States as an integral part of our early legal institutions. Simply put, the idea of the common law is that judges, in the course of deciding cases, develop principles of law that bind not only the parties in the particular case but other judges handling future cases. The judges’ work is, in theory, subject to review and modification by legislatures. As it happened, the decisions of English (and then American) judges were usually left uncorrected. The judges, collectively, thus were able to develop bodies of law binding on everyone. Judges, in short, became lawmakers in the course of deciding cases. These principles of judge-made law (outside the context of the Constitution and its meaning) have governed important relationships in society. The world of business and commerce operates under the law of contract. Injuries caused by intentional acts or through negligence are redressed through the law of tort.

Common law is the mother's milk of beginning law students. Every year, 100,000 fresh new faces embark on an intense nine-month study of judge-made law in the 200 or so law schools around the United States. Here they learn to “think like a lawyer.” They engage in a reasoned analysis of cases, whether in contract, property, or tort (along with a few other subjects), and learn to discern in those cases both the various principles of law (the rules themselves) and the reasons justifying those principles.

Justice Scalia summarizes the common-law tradition, as absorbed by first-year law students, this way: “[T]his system of making law by judicial opinion, and making law by distinguishing earlier cases, is what every American law student, every newborn American lawyer, first sees when he opens his eyes. And the impression remains for life. … That image of the great judge remains with the former law student when he himself becomes a judge, and thus the common-law tradition is passed on.” With this tradition Justice Scalia is at peace. “I am content to leave the common law, and the process of developing the common law, where it is.”

But along the way of common-law development, something very important happened. With greater frequency as the years went by, Congress and state legislatures passed laws covering a wide (and ever-growing) range of subjects. But law students, guided by their professors, largely went on as before, living in the world of the common law. Little attention was paid to the development of statute law. This was odd, Justice Scalia notes, because statutes abound. Yet, even in law-school courses where the analysis of statutes was unavoidable, say, in the law of employment discrimination, the focus remained on case law. The upshot of this decided educational tilt toward cases, rather than statutes, is that statutory interpretation remained a distant cousin, receiving little notice in the law schools. In short, as common-law development became ever more refined, statutory interpretation remained primitive, so much so that settled rules of statutory interpretation were never agreed upon. Indeed, the Scalia school emphasizes, the legal system has never agreed on what the
basic mission
of statutory interpretation should be. Is the purpose in analyzing statutes to determine the legislature's intent in passing the law? Or something else?

Justice Scalia has a clear and carefully worked out answer. His “mission statement” for statutory interpretation pours directly over into his theory of constitutional interpretation. It is, in a word, “textualism.” For Scalia, textualism is not to be confused with what is frequently called strict construction, discussed in Chapter One. Political camps, reflecting the ongoing debate within the law, tend to divide into warring sides. For those favoring generous interpretation of “rights” provisions in the Constitution and the Bill of Rights, the watchwords are
the living Constitution.
The theory goes like this: As society evolves over time, our “understanding” of the Constitution likewise evolves. The Constitution embodies “values,” which then guide the judge in articulating what they are in the current age.

The living-Constitution school of judging is a very exciting one, Scalia observes, for under that school's philosophy, judges enjoy substantial latitude in interpreting the Constitution. Consider, for example, the key constitutional word
liberty
, whose meaning the justices have contentiously debated. Abortion, physician-assisted suicide, grandparents’ visitation rights, gay and lesbian rights—all these, and more, are analyzed and decided under the rubric of “liberty.” But the issue is, Who decides what the governing social policy will be? Judges or legislatures? For the Scalia school, the answer is fundamental. Liberty, in the ultimate constitutional sense, means at its core the freedom of a democratic society to govern itself. In the main, judges should stay on the sidelines while the other branches are out on the playing field of government. In contrast, the living-Constitution school—illustrated by the Warren Court and its admirers—encourages judges to engage in the game.

For opponents of bold, muscular judging, a living Constitution represents a judicial license to read into the Constitution what he or she thinks is right, or just, or good. Uncomfortable with this more freewheeling approach to constitutional interpretation, conservative critics frequently insist on strict construction, as we saw in the previous chapter.

Justice Scalia shies away from this description of his judicial philosophy. In
A Matter of Interpretation
he writes: “I am not a strict constructionist, and no one ought to be—though better that, I suppose, than a nontextualist.” He elaborates: “A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”

How did this great divide in the law come to be? It is, as Justice Scalia sees it, the temptation to carry on the common-law tradition. Keep making the law. Judges weave contract law, tort law, property law, so why not the “higher law” of the Constitution? Scalia explains: “The Constitution, however, even though a democratically adopted text, we formally treat like the common law.” Scalia instead urges: Remain true to the text. Text and structure will yield up answers if we will be lawyerly and rigorous in our approach. The Constitution is law, and it should be treated as law. Avoid, in short, the common-law tradition of judging.

How does textualism work? First, writes Scalia in his essay, context is critical. “In textual interpretation, context is everything, and the context of the Constitution tells us not to expect nit-picking detail, and to give words and phrases an expansive rather than narrow interpretation—though, not an interpretation that the language will not bear.” Take freedom of speech and the companion First Amendment liberty, freedom of the press. Justice Scalia engages in a textualist interpretation this way: “Handwritten letters, for example, are neither speech nor press. Yet surely there is no doubt they cannot be censored. In this constitutional context, speech and press, the two most common forms of communication, stand as a sort of synecdoche for the whole. That is not strict construction, but it is reasonable construction.” In the textualist approach, then, the constitutional freedoms of speech and press are about
communication.
The reasonable judge thus does not limit the terms
speech
and
press
to their most narrow meanings. That might be strict construction, but it is not textualism. Rather, the textualist judge, using reason and logic, discerns that these two constitutional watchwords were designed to protect communications more broadly.

Symbolic acts of protest that convey a message—like wearing an armband in protest or burning the flag—are forms of communication. So too art and music. All these, and more, thus enjoy the protection of the First Amendment.

This is, in shorthand, the textualist effort to discern meaning—the original meaning as embodied in the text. It is not, however, “intent.” We do not ask, in a proper textualist analysis, what the framers of the Constitution “intended.” We inquire, rather, into what the words they chose to employ mean. And that meaning is controlling. Nor is the textualist overly wedded to the Court's prior cases and their holdings. This is very much a matter of judgment, or degree, as to how much respect the applicable set of judicial precedents should enjoy. But as a matter of judgment, and as a matter of degree, the common-law value of precedent—
stare decisis
—ranks lower on the textualist value scale. Scalia's passionate and continuing opposition, year after year, to
Roe v. Wade
illustrates the relative weakness of
stare decisis
for a textualist. That, then, is textualism, or the Scalia school.

Like Justice Scalia, Justice Anthony Kennedy is charming and witty, continually displaying a boyish enthusiasm that belies his proud status as grandfather. He has an uncanny ability to connect with an audience. In his inaugural days as a justice, Kennedy appeared before the Supreme Court Historical Society and made a picture-perfect fifty-minute presentation in the courtroom itself of the period when President Franklin D. Roosevelt tried to “pack” the Court with a majority of justices. This unique episode, prompted by the Court's invalidation of critical portions of FDR's New Deal, is one of fascination and intrigue to Court watchers. Stymied by the Court's adverse decisions, FDR sent a message to Congress in February 1937 calling for appointment of an additional justice for each justice aged seventy or over. The idea, of course, was to bring about a Supreme Court less hostile to New Deal programs. The plan failed, and it buttressed the independence of the Supreme Court from Congress and the president. Kennedy laid out the saga with ease. It was an altogether impressive performance. The audience was effusive, uttering comments like “A tour de force” and “Can you believe that he didn't use a note?”