Scalia’s Originalism and Insincerity
Probably the most important thing I learned in law school (I can say “learned” in the past tense as I’m now only 50 days from graduation) is that most legal texts (especially the Constitution) are too indeterminate to constrain judicial discretion. (My Competing Fatwas post illustrated this point.)
And probably the second most important thing I learned in law school, a corollary to the first, is that because legal texts often serve as no constraint on judicial discretion, any results a judge asserts as justified by the application of law are no more than that judge’s own personal preferences just dressed up, real fancy, in the guise of law. And any judge who claims that he is simply mechanically and dispassionately applying the law to the facts of a case is either, at best, lying to himself or, at worst, lying to you.
Consider Justice Scalia, whose judicial philosophy can be roughly reduced to the following: (1) Most legal text (including constitutinal text) is sufficiently determinate to constrain the discretion of judges and (2) where the text is not sufficiently determinate, applying the original intent of that text’s drafters (Madison, et al. for the Constitution) to interpret the text resolves this indeterminacy, and thus serves as a second constraint of judicial discretion.
Of course, Scalia’s “originalism” is just another real fancy guise with which to dress up personal perferences as “law”. Proof?
Consider the Hamdan case, argued by Georgetown’s own Prof. Neal Katyal before the Supreme Court last week. Here’s a brief rundown of the case via Slate:
The issue before the court is the legality of President Bush’s military tribunals. The two key war-on-terror cases of 2004—Hamdi v. Rumsfeld and Rasul v. Bush—established that the administration could detain enemy combatants. But these combatants would nevertheless be entitled to some neutral adjudicatory process, the contours of which the justices left to be determined. The question for the court is whether the military tribunals established by the president by military order in 2001 meet the justices’ standard for neutral and adjudicatory.
If you recall from way back, I helped in research for parts of an amicus brief, on behalf of the Guantanemo detainees, when Hamdan was tried in the district court. We won there, but that decision was reversed in the federal appellate D.C. Circuit Court by a panel that included now-Cheif Justice Roberts. After losing in the appellate court, Prof. Katyal sought and was granted review by the Supreme Court. And here we are.
Now, at least two courts, and a group of very smart jurists, have disagreed about the legal merits of the Hamdan case, which to me is pretty solid evidence that the relevant legal text is indeterminate on the matter.
But not for Justice Scalia!
On March 8, three weeks before Hamdan was argued before the Supreme Court, Justice Scalia was asked what he thought about the proposition that Gauntanemo detainees have rights under the U.S. Constitution or international conventions, a principal issue in Hamdan. Scalia replied: ““Give me a break…. If he was captured by my army on a battlefield, that is where he belongs. I had a son on that battlefield and they were shooting at my son and I’m not about to give this man who was captured in a war a full jury trial. I mean it’s crazy.”
It doesn’t take a lawyer, of course, to figure out this is not a legal argument. Scalia’s decision regarding the rights of the Gauntanemo detainees stems not from his self-proclaimed belief in originalism or some dispassionate application of some legal text. Instead, he’s made his decision based on personal circumstances and emotions. Now, when he sits down to write his (hopefully dissenting) opinion, he probably will be a little more tactful. He won’t mention his son, but will instead talk about the President’s War Powers (or something) from a textualist or originalist perspective. It’ll all sound so presausive. But make no mistake: originalism is just another way to dress up personal preferences and give them the force of law.
For my philosophy of law class last term I wrote a paper about what constrains a judge’s decision, because it sure as hell is not just words on paper. I agree with you Mohsen, personal preference is a major factor, but really it’s just one of many factors, and it is most often not a factor.
Here are excerpts from my term paper (do not copy without my permission, or something):
Duncan Kennedy, a federal district court judge, describes his experiences of doing what judges do, namely legal reasoning. He considers the popular conception of the law - that it is a determinate result-producing technique (like Scalia believes) – and argues that it is a mystery how one could even make sense of this idea, much less justify it, since the legal rules are always sufficiently manipulable to doubt that the results of legal reasoning follow with necessity. But, he does not have free reign, but rather he feels quite a bit of constraint on his decisions.
For the sake of his reputation and job, he must consider how the members of the legal and lay communities want the decision to turn out. If his decision fits with everyone’s opinion, then constructing the legal argument should be easy, although he admits that he feels guilty if the argument does not stand up to his own standards, and such guilt can be debilitating. However, in cases when his ruling appears to, or does, go against the grain of the opinions of members of the legal and lay community, he must present a legal argument that will appease his opponents. His argument must also suffice to stand up to the appeals process. If he fails to come up with such an argument, then his reputation will take a serious blow. And because there is an image of legal necessity among the lay community, the legal argument he offers needs to give the appearance of orderly boundaries between past rulings, such that the decision-making process looks like a simple exercise in rule application. He knows that if his style and tone start to waiver from one decision to the next, his reputation will suffer. He also knows that the decisions that have the potential to hurt or benefit his reputation the most are the ones that require much more time, energy, and legal reasoning skill, all of which are available to him in a limited supply. In these more extreme cases, he is constrained by his pessimism about not coming up with an argument that will maintain his reputation, since even if he thinks he has such an argument, there might be hundreds of cases that others might have the time, energy, and legal reasoning skill to effectively argue are relevant to his case and undermine his decision.
He feels another type of constraint, independent of the ones above, regarding his view of how he ought to decide a particular case. He recognizes that how he wants the case to turn out is not a matter of his “gut feeling about the case” unless we understand his “gut” as “an organ deeply conditioned by existence in our legalized universe.” He has spent decades reading declarations from judges, lawyers, legislators, and philosophers that have “influenced, persuaded, outraged, puzzled, and instructed” him about how one ought to respond in situations of conflict. He also knows that as he studies materials to prepare a legal argument for a case, his view of how the case ought to turn out will be influenced to some degree because he feels “the elemental normative power of any outcome reached by people I [Kennedy] identify with.”
While the constraints are numerous, note that they are not in the form of rule-guidance. Even with the above constraints, Kennedy admits, the field of law is still “gloriously manipulable.” While judges are constrained to some degree, they are also somewhat free. Judges have many tools at their disposal. They can favorably restate facts, holding, rules, policies, and stereotypes. For example, rather than saying “worker blocks bus,” one can say, “bus monopoly’s intransigence finally breaks patience of job-like toilers.” A judge can restate the holding of a previous case so that it clearly either does or does not include the case at hand. Additionally, a judge can select from a massive amount of facts, holdings, policies, and stereotypes that are favorable to his/her cause. Also in the judges toolbox is an “enormous repertoire of typical policy arguments” that are in “matched contrary pairs, like certainty vs. flexibility, security vs. freedom of action.” By stressing a chosen matched pair and then stressing or ignoring one part of a matched pair, the “correct” decision will seem to follow with necessity.
Without the constraints Kennedy acknowledges, the tools in his legal-reasoning toolbox make any outcome reachable. Moreover, Kennedy realizes that he cannot remove himself from the pressures of his constraints and he realizes that his tools do not have a default setting so that he can have a value-neutral perspective to judge a case. And while sometimes the process of creating a legal argument feels like rule application, he realizes that this is just because he does not need to do much work to have the lay and legal community on his side, which is a matter of contingent fact, not necessity. Kennedy finds himself unable to even make sense of the idea that judges are constrained by rules, a la Scalia.
I agree with everything you say in your excerpt. And none of it’s inconsistent with the proposition that legal reasoning is guided by personal preferences not legal texts. I agree that judges will be influenced by social considerations (e.g. reputation, reaction of lay and legal communities, etc.), but these aren’t really constraints because they’re not binding like law purports to be. Like law itself, how much a judge is influenced by these social factors is a matter of personal preference.
Is there literature defending “Originalism” against the kind of concerns you guys raised above? I find it hard to believe that Justice Scalia and many other like minded judges aren’t aware of the criticisms against it. I suppose that it is possible, hell, its probably very likely that your assertion that origninalism is just a noble sounding but disingenuous means to justify personal preference is correct. While I find all this fascinating and in some respects really really important, I wouldn’t think what you guys are talking about is in some way novel–that is to say that this is a subject that I hope would be prominent in law school curriculum…something talked about and addressed at almost any place where the underlying philosophy of judicial decision making is taken seriously.
But then again maybe I’m being idealistic and naive.
After all I’ve never been to law school.
Originalism intuitively (at least to me) screams of bullshit in a way eerily reminiscent of a fundamentalist insisting on a literal interpretation of religious text. If Scalia (or whoever) would not, or in fact, does not accept the kind criticisms you’ve laid out as being problematic for any kind Originalism-based judicial philosophy then doesn’t there have to be some kind of defense by somebody somewhere to justify the legitimacy of its use? Furthermore would it not have to be fairly well known/read? Or is is the case that they just don’t take them seriously?
I studied this debate in an undergraduate philosophy of law class, so yes, we’re not onto to something completely novel. Read Hart and Dworkin for a defense of the other side. The idea that there’s one right way to interpret the law and that its discoverable by simply reading the law is a powerful one. It’s clearly a grounding point for many lawmakers - they live by it, just like ministers can be believe they know the one right way to interpret the bible. It’s also much simpler to believe and live by than the complex alternative.
In the end it’s an argument about what we should do (how we should govern), and the side that argues that their interpretation is the one the right way… it simply follows from the text,… blah blah, blah … has an attractive argument for many… the simplicity and beauty of it all. If you really inspect their beliefs they might admit that there are more factors than you would expect, simply because of the differences in how they understand “simply reads from the text.” But one side definitely underemphasizes socio-political-personal factors that influence law, compared to the other side.
What does the end of the other side’s (non-originalism’s) argument look like? “Ok, so I’m greatly influenced by lots of factors, and in the end I could choose between several options and make it work, but I chose this one because it suits what I see as best and because I think people will buy it.” If Judges said stuff like this I think we’d have to pay judges 10 times as much because lots of people would be pissed off at them rather than George Washington and Thomas Jefferson.
Something I’ve learned from studying the philosohy of science too is the importance and significance of ideas that primarily serve as a uniting force and a resource for a common language. Physicists have their paradigms like Newtonian Mechanics and now Quantum Mechanics and Relativity Theory; Biologists have generic evolutionary theory; Judges have Originalism. If people think they are part of a single enterprise, they can communicate sufficiently, and the result is something like sending spaceships to the moon or an incredibly powerful nation-state with relatively happy citizens, not to mention jobs and life-fullfillment, then these ideas will spread like wildfires. Close inspection makes them seem hallow, but as far as i can tell, similar hallowness haunts all ideas and its best to believe what we think will bring about the desired result, which is why I’m not standing at the steps of the Supreme Court with a sign reading “the law is bullshit.”
I hope this makes sense, I’m in a hurry. I might come back and edit this tomorrow.
I have been to law school, and yes, this criticism is well covered, most vividly in constitutional law where the text tends to be the most indeterminate, but even in contract law, where it’s the job of people like me (soon) to make the text as determinate as possible.
Originalist respond by denying my premise: that legal text and original intent are not as indeterminate as people like me claim it is– that the “equal” in “equal protection” actual means something. With that, I’m taking a two-week vacation from law.