A new book co-authored by Supreme Court Justice Antonin Scalia and legal writing expert Bryan Garner accuses judges – including some on the Supreme Court – of loose and unprincipled decisionmaking that has tarnished the reputation of the judiciary.
“The descent into social rancor over judicial decisions is largely traceable to nontextual means of interpretation, which erode society’s confidence in a rule of law that evidently has no agreed-on meaning,” the authors state. “Our legal system must regain a mooring that it has lost: a generally agreed-on approach to the interpretation of legal texts.”
The book, titled Reading Law: The Interpretation of Legal Texts, will be published officially June 19. It is the second collaboration between Scalia and Garner, and could become the standard guide for judges and lawyers on how statutes and the Constitution are – or should be – interpreted, at least in the view of the authors. Their 2008 book Making Your Case: The Art of Persuading Judges was a bestseller among lawyers and has become an essential how-to book for litigators and appellate advocates. The National Law Journal was provided this week with a galley copy of Reading Law.
The new book is chock-full of opinionated observations and Scalia-esque zingers about disfavored Supreme Court rulings such as these:
-Wickard v. Fillburn, the 1942 Commerce Clause decision that figures prominently in the pending health care cases, “expanded the Commerce Clause beyond all reason,” the book states.
-Roe v. Wade, the 1973 ruling that declared a woman’s right to abortion, “declared unconstitutional state statutes that in no way contradicted any specific provision of the Constitution,” the authors write. They add that the Court “should not give stare decisis effect” or precedential value to the decision.
-Lawrence v. Texas, the 2003 decision striking down anti-sodomy laws, is viewed by the authors as an example of judicial embrace of “the living Constitution [which] means what reform-minded judges think it should mean.”
In an appendix, the book also rehearses a long-standing pet peeve of Scalia’s: the use of sometimes flawed dictionaries to divine the meaning of words at the time legal texts were written. The authors single out the “notoriously permissive” Webster’s Third New International Dictionary, known for its “doubtful, slipshod meanings.” Its chief sin, which Scalia spotlighted in a 1994 decision and mentioned during an oral argument this February, is that it approves of the use of “infer” to mean “imply.”
Overall, the 567-page book is an extended plea for judges to hew to the text of statutes and the Constitution in making their decisions and to ignore extraneous factors such as legislative history, the workability of the statute, and the presumed purpose of legislation – though it says that the tongue-twisting “purposivist” approach is sometimes relevant. “We look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation” about the drafters’ intentions and the law’s anticipated consequences.
Reading Law is structured as a catalog of the canons of interpretation – 57 in all – complete with their Latin roots, in many cases. An example from chapter 10: expressio unius est exclusio alterius is the negative-implication canon, meaning that if a text explicitly covers one thing, it usually means that it does not cover other things. The authors gave a real-life illustration: “When a car dealer promises a low financing rate to ‘purchasers with good credit,’ it is entirely clear that the rate is not available to purchasers with spotty credit.”
As that example suggests, the book is not just a dry recitation of legal rules. It labors hard to explain the rules in plain, often droll language. “We wanted to make it readable and understandable for a broad audience,” Garner said in an interview Thursday. The authors did not, Garner said, want to write merely a “descriptive treatise that says ‘some courts do this, some do that,’” without giving the authors’ opinions about how specific opinions botched the task of interpretation. Instead, Garner said, the goal was to arrive at “one principled approach” to interpretation through the analysis of a broad range of analytical methods.
At the same time, the book offers so many canons of interpretation that a shrewd judge could pick one and claim to be a textualist – and still reach almost any result. In a foreword, Judge Frank Easterbrook of the U.S. Court of Appeals for the 7th Circuit asserts that even a Supreme Court composed of Scalia and eight textualist clones could divide 5-4 in tough cases.
Scalia himself has been accused of saying he is bound by the text of a statute or constitutional provision – and then ruling according to his personal preferences anyway. “That is a false charge,” Garner said Thursday, adding that Scalia is probably “the most consistent and principled” justice in terms of following the text wherever it leads him.
In the preface, Scalia and Garner address that point. “If pure textualism were actually a technique for achieving ideological ends, your authors would be counted extraordinarily inept at it.” Describing himself as a “confessed law-and-order social conservative,” Scalia said textualism has led him to seemingly liberal positions on criminal sentencing, confronting witnesses, punitive damages and the constitutionality of bans on burning the American flag. For his part, Garner said he is pro-choice and supports same-sex marriage, but “finds nothing in the text of the Constitution that mandates these policies.”
Nonetheless Scalia, referring to himself in the third person as “your judicial author,” said he “knows there are some, and fears that there may be many opinions, that he has joined or written over the past 30 years that contradict what is written here – whether because of the demands of stare decisis or because wisdom has come late.” He added that he could not swear that he would not do the same in the future, in part because “a judge must remain open to persuasion by counsel.” But, Scalia concluded, “the prospect of ‘gotchas’ for past and future inconsistencies holds no fear.”
Contact Tony Mauro at email@example.com.