November 17, 2004

More Scalia

I got to listen to Justice Scalia again today, this time at the Law School. The format was mostly Q & A, and the quality of the questions today was generally better than yesterday. A little too many social policy questions for my taste, but hey. Even though Scalia may not like it, the Supreme Court is an enormously powerful arbiter of social policy, and the chance to ask one of the nine Justices a question about abortion, or gay rights, or whatever other social policy issue floats your boat, should not be passed up.

I'm still curious about Scalia's judicial philosophy, and to what extent it reduces the number of instances that require judges to exercise their own personal discretion to obtain a result. Here I'm mostly thinking about statutory interpretation, not constitutional interpretation. What should a judge do when the statute is ambiguous? In the realm of statutory interpretation, Scalia says that a judge ought not to construe the text "strictly" or "leniently," but "reasonably." My question is, reasonably according to what, and according to whom?

Scalia said today, as he has consistently for years, that he does not think that legislative history is a legitimate source of authority for a judge who must interpret an ambiguous statute. He also said that the doctrine of stare decisis should not bind the Supreme Court absolutely--cases like Roe v. Wade which are founded upon an erroneous interpretation of the Constitution should be overturned. It would seem then that Scalia would agree that precedent should have even less authority when interpreting statutes. Even if precedent can be binding, it's sometimes as ambigous as the statute itself.

If legislative history and stare decisis are out as authoritative guides for judges confronted with an ambiguous statute, what's in? Several times today he mentioned some interpretive "canons" (rules of thumb) like the rule of lenity: in criminal cases, the statute should be construed in favor of the defendant. The problem with canons is that there are a lot of them, and a judge can often pick and choose which ones to apply in a particular case (see for example Babbitt v. Sweet Home, 515 U.S. 687 (1995), where Scalia engaged in dueling canons with Justice Stevens in a dissent from a holding that the Endangered Species Act includes habitat destruction that kills wildlife in its prohibition against "taking" endangered species.) I haven't seen an argument demonstrating that any approach to statutory interpretation, Scalia's included, would allow a judge to specify which canons should be relied upon ex ante when the text of a statute is ambiguous. Reading the opinions, it seems like most judges choose the canons they like, and don't choose the ones they don't like. But I haven't yet heard a judge or anyone else tell me that yes, this is what really happens.

Scalia's approach to statutory and Constitutional interpretation is probably more successful than other popular approaches at rooting a judge in the law and limiting his arbitrary discretion. That seems to be what everyone is afraid of, and probably for good reason. Article III judges aren't elected, and they can serve for life, if they want. They should be constrained. But I don't think any particular approach to statutory or constitutional interpretation can ever wholly succeed at eliminating the judge's individual preferences as a major (the major?) factor in cases where the text is ambiguous. This is probably uncontroversial.

Why, then, is everyone so hesitant to admit it? Certainly very few judges will; they'll always say that their decision was compelled by the law. But we know that this isn't true because in hard cases, different judges come out the opposite way, and all of them will say their decision is compelled by the law. Either about half of these wise, experienced, and conscientious judges are plain wrong, or none of them were compelled by the law. Instead, they did what we pay judges to do: they exercised their own best judgment.

This is the reason why the political views of a nominee to the Supreme Court will always matter. Especially at the Supreme Court, where the cases are chosen because they're situated in thorny areas of the law with no easy (and often no compelled) answers, the Justices are going to have to exercise their own judgment. This means they're going to have to identify what they believe are the most important principles underlying the controversy, and they'll have to interpret for themselves what those principles suggest ought to be the outcome of the case before them.

In Sweet Home, Justice Scalia relied upon the principle of the sanctity of private property to find that habitat destruction was not outlawed by the Endangered Species Act. Justice Stevens relied upon the value of preventing species extinction to argue that imputing to Congress the intent to cover habitat destruction was the most reasonable reading of the statute. Neither justice was being overtly "political," but the political preferences of both influenced their judgment about the resolution of this hard case.

Posted by Carey at November 17, 2004 10:21 PM