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Don Franzen Interviews Justice Scalia on Reading Law

October 24, 2012

The Los Angeles Review of Books features Don Franzen’s extensive interview of Justice Scalia on his new book, Reading Law: The Interpretation of Legal Texts. The interview begins:

FRANZEN: Your Honor, there are already so many treatises written on interpreting text and canons of interpretation, why did you and your co-writer Professor Garner feel that it was time to write this book on “reading law”?

SCALIA: Oh, I don’t think there are that many treatises. I believe that the last treatise that really went through the canons systematically is a hundred years old. The canons have simply been disregarded in recent years. Indeed, they’ve been run down by the academy. So, that’s why we thought it was necessary to teach textualists — those who want to be textualists — how to do textualism. You can’t do it without knowing what are the clues to the meaning of a text.

FRANZEN: I’ve had at least one appellate case that turned on a textual issue — whether or not a particular canon applied. It does seem the treatment of the canons in the cases is sort of haphazard.

SCALIA: They are simply not taught systematically in the law schools, and you’re quite right to the extent that students learn them they learn them episodically — in this case, that case and so forth. And they ought to be taught systematically, I think.

FRANZEN: Should that be a class in law school?

SCALIA: I think there should certainly be a course on statutory interpretation, and more and more law schools have begun to have such courses. But none of them, as far as I know, go systematically through the canons, because there’s no text that has them.

FRANZEN: You and Professor Garner of course are both advocates of “textualism,” the idea that meaning is to be found in the governing text, and also for “originalism,” that you are looking for the “meaning that the text has borne from its inception” — here, I’m quoting from the book. And of course you reject judicial speculation about either what the text means from content outside of the text or the “desirability of the consequences of the reading” — that’s also from your introduction. Text of course governs, but what would you say to the argument that the ability to rely on the original meaning weakens over time? Is there a difference between applying textualism to a contract written in 2008 versus a document written in 1787?

SCALIA: No, it seems to me that the parties agreed to what they agreed to, and I don’t know why it would be fair to give one side or the other a change in the obligations simply because of the passage of time. They said what they said, and they agreed to what they agreed to. I don’t see how the antiquity of the text has any bearing on whether its proper to give it the meaning that the parties that drafted it — if it’s a bilateral contract, or the public that received it, if it’s a statute or an ordinance — understood it to mean.

FRANZEN: Some would be surprised to see that you actually argue against strict construction. In fact, you include strict construction in your list of thirteen fallacies. Most people think textualism, originalism, and strict construction are sort of a trinity.

SCALIA: I think strict construction gives a bad name to textualism. My approach is to give the text a reasonable meaning that it bore when it was adopted. For instance, if you interpret strictly the First Amendment, it would be the case that Congress could censor handwritten letters, because, strictly, it covers only freedom of speech and of the press. A handwritten letter is neither speech nor press. Come on, that’s absurd, that’s not the meaning of the First Amendment. The First Amendment reasonably understood is a guarantee of freedom of expression, whether handwritten or oral, or semaphore or burning a flag.

FedSoc Teleforum 9/6 on Bickel’s “The Least Dangerous Branch”: Still Relevant 50 Years Later?

September 5, 2012

In a recent SCOTUSblog symposium marking the 50th anniversary of the publication of Alexander Bickel’s The Least Dangerous Branch, Roger Pilon argued that the twin themes that emerged from that important volume — the “countermajoritarian difficulty” and the “passive virtues” — were especially influential in shaping the constitutional thought of Bickel’s colleague, Robert Bork. Whatever their differences, Bork subsequently became seminal figure in shaping the modern conservative legal movement, especially through the Federalist Society. But those ideas led also to a response within that movement from libertarians concerned as much about the ”majoritarian difficulty,” a response that  has led to a spirited debate on the Right over the nation’s “First Principles.”

Contributing also to the SCOTUSblog symposium, Adam J. White noted the Madisonian and Burkean elements in Bickel’s writings. Emphasizing Bickel’s “principled prudence,” White cautioned “not to press the Court to recognize rights divorced from principles rooted in national experience.”

FedSoc’s Federalism & Separation of Powers Practice Group invites you to join Pilon and White in a teleforum on the subject “The Least Dangerous Branch: Still Relevant, 50 Years Later?”  Here are the details:

Start : Thursday, September 6, 2012 2:00 PM

End   : Thursday, September 6, 2012 3:00 PM


Agenda: The call begins at 2:00 p.m. Eastern Time.

Registration details: Teleforum calls are open only dues paying members of the Federalist Society. To become a member, sign up here.

Tom Goldstein on the Evolution of SCOTUSblog

August 20, 2012

GoverningWorks features a fascinating interview of Tom Goldstein, the founder of SCOTUSblog. Here’s an excerpt from the transcript:

[W]e can track all of our in-bound readers, unless someone takes the highly unusual step of hiding where they’re coming from.

And the Supreme Court doesn’t hide itself. It has the IP [Internet Protocol] address “Supreme Court of the United States” is the domain that’s associated with the IP address. And we were able to see hundreds and hundreds to thousands of hits coming in from them on any given day.

And we know from our former students who are clerks, from just casual conversations with the Justices, that the Court is very conscious of the blog and a lot of people inside the building read the blog. That doesn’t mean they think particularly highly of the blog or anything like that. Certainly, I would never say that the blog has influenced anything the Court has done.

But, you know, if you’re an important institution and there’s one Web site devoted to following everything that you do, it’s not surprising that you’re going to read it.

And, I was concerned that the Justices and their law clerks would come to believe that we were writing effectively to them. So that, if we were….So, back in the day, for example, if we filed a Cert. Petition, then we would write on the blog, ‘We filed this really interesting Cert. Petition. It’s about this, that or that question. And, here’s the reason the Court might take the case.’ That was never intended for the Court as an audience. But, the Court doesn’t know that and could mis-understand it. And so it became very important to cut all that out because, if the Justices don’t trust you, then you’re not being an effective advocate.

The other thing that happens is that because other people realize, or at least perceive, that the blog has an audience inside the building, people will try and use the blog to affect the Justices. So, constantly, we’re getting approached by people asking us to write about their cases, highlight their cases, cover cases in a particular way, as part of their agenda for influencing the Justices. And so, we’re incredibly resistant to that both because we think it’s improper and because we are just…we don’t want the Court to look at us in that way.

A kind of prototypical illustration is, there was a case last Term on the merits a the Court, where there parties were trying to get…one of the parties was trying to get a set of documents in front of the Court and was trying to lodge the documents in the Court but was unsuccessful in doing that. And so they couldn’t get them in front of the Justices and their law clerks in the ordinary process. And we got heavily lobbied to publish a story about the documents. And, they were very interesting. And so it presented a really genuine journalistic dilemma about what to do because it was apparent to me that a real part of their agenda was not because they wanted the documents published for the sake of publishing them and their interest [but] because they wanted a back door into the Court. And resolved that by not publishing them. But, it was a puzzle to work through.

Justice Scalia Discusses His New Book on Legal Interpretation on C-SPAN

July 30, 2012

In a C-SPAN video available here, Justice Antonin Scalia discussed his new book, Reading Law: The Interpretation of Legal Texts, co-authored by Bryan Garner. According to the network’s summary, Justice Scalia “defined the meaning of textualism as it relates to interpreting laws and the meanings of the words originalism and strict constructionism as they apply to constitutional law. He cautioned that individuals should read entire judicial opinions before reaching any conclusion about a particular judge’s fairness. In this interview he discussed his opposition to cameras in the Supreme Court chamber. He responded to video clips and talked about criticism from the press, saying that he responds by not commenting or by writing letters to the editor and throwing them away.”

Intention and the Canons of Legal Interpretation

July 16, 2012

Author: Stanley Fish
Source: New York Times

Those who are still wondering why Chief Justice John G. Roberts voted as he did in NFIB v. Sebelius might find an answer (not necessarily the answer) in Antonin Scalia’s and Bryan A. Garner’s new book, “Reading Law: The Interpretation of Legal Texts.” One of the canons of legal interpretation the authors rehearse is the Constitutional-Doubt Canon, #38 in their taxonomy: “A statute should be interpreted in a way that avoids placing its constitutionality in doubt.” This canon, Scalia and Garner explain, “rests upon a judicial policy of … minimizing judicial conflicts with the legislature.” They cite and affirm as exemplary a statement by Justice John Paul Stevens: “It is our settled policy to avoid an interpretation of a federal statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question.”




FedSoc SCOTUScast – Randy Barnett and Neal Katyal Discuss Obamacare

July 16, 2012

On June 28, 2012, the Federalist Society organized a SCOTUScast (recording here) on the Affordable Care Act decision. Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, discussed the case with Neal Katyal, a partner at Hogan Lovells, professor at Georgetown Law Center, and former Deputy Solicitor General.

Barnett began by noting that the two most important provisions of the ACA at stake were the individual mandate and the Medicaid provision.  The former required that all Americans purchase health insurance as a means to compensate insurance companies for the costs that were being imposed upon them by various restrictions or various requirements–for example, guaranteeing community rating, which required that they issue policies for coverage for pre-existing conditions and that their rates adjusted accordingly.  The Medicaid provision, he explained, represented a substantial change in the program: Congress was going to provide considerable additional funding for new expanded Medicaid programs. It conditioned this new funding on states’ acceptance of the expanded program, but it also reserved the right to condition the funding for all existing Medicaid programs.  It was the entire funding condition that was challenged because it was alleged to be coercive toward the states.

Barnett said that the answers to this issues were not what anybody expected. Read More »

Left, Right, and Judicial Review

July 12, 2012

Author: Ilya Somin
Source: Volokh Conspiracy

Various commentators, such as co-blogger Orin Kerr and Joel Alicea argue that the individual mandate case represents a sea change in conservative attitudes to judicial review. Whereas before conservatives supposedly opposed most judicial invalidation of statutes, now they emphasize the need to strike down laws that can’t be justified on originalist grounds. Orin also suggests that the battle over the mandate has led liberals to change position and embrace “judicial restraint,” which they were reluctant to do before.

There is something to these claims. But I think there is a lot more continuity in both liberal and conservative attitudes towards judicial review than these commentators suggest. As I pointed out at the very beginning of the individual mandate battle, conservative scholars and jurists have been arguing for stronger judicial enforcement of constitutional limits on federal power for many years now. The issue long predates Obamacare.

Alicea contrasts the four conservative justices’ position on the mandate with Chief Justice Rehnquist’s endorsement of “restraint.” In reality, however, Rehnquist led the federalism “revolution” of the 1990s and dissented in Gonzales v. Raich. Moreover, he was advocating stronger enforcement of federalism as far back as the 1976 case of National League of Cities v. Usery . When that decision was overruled in 1985, both he and Sandra Day O’Connor bitterly dissented and forcefully rejected the dominant liberal view that federalism issues should be left to the political process. Thus, there is at least a 35 year history of leading conservative jurists urging strong judicial enforcement of limits on federal power.

The Mystery of John Roberts

July 11, 2012

Author: Linda Greenhouse
Source: New York Times

In November 1991, the Supreme Court heard argument in Lee v. Weisman, on the question of whether a prayer recited by a member of the clergy at a public high school graduation violated the constitutional separation of church and state. The vote after argument was 5 to 4 to allow the prayer. Chief Justice William H. Rehnquist gave the opinion-writing assignment to Justice Anthony M. Kennedy.

Some months later, Justice Kennedy sent a note to Justice Harry A. Blackmun, the senior justice on the dissenting side. He had changed his mind, Justice Kennedy said; the argument against allowing the prayer was the better interpretation of the First Amendment’s Establishment Clause. Justice Blackmun, now the senior justice in the majority, had the prerogative of reassigning the opinion. He told Justice Kennedy to keep writing.

When the 5-to-4 decision to prohibit graduation prayers was finally announced on June 24, 1992, it was huge news. From today’s perspective, it may not sound like a big deal. But Lee v. Weisman was one of the hot-button cases of the 1991 term, perhaps second only to Planned Parenthood v. Casey, the abortion case that challenged the continued validity of Roe v. Wade.

The Chief Justice and Judicial Restraint

July 10, 2012

Author: Carrie Severino
Source: National Review

Jumping off Ed Whelan’s excellent post, I have heard a number of people argue that we shouldn’t have been all that surprised by the chief justice’s decision because he is easily classified as the sort of conservative who believes in a very robust application of what is often called “judicial restraint.”  Steven Teles — author of the excellent book The Rise of the Conservative Legal Movement — provided as good a summary of the argument as I’ve seen in writing:

One way to think about Roberts’ decision-making is that he really is a Reagan Justice Department-era conservative (I wrote about the Reagan DOJ in an article in Studies in American Political Development called “Transformative Bureaucracy”). That era of conservatives were pissed off at the activist judiciary that brought us school busing and other forms of what they took to be social engineering (which explains Roberts’ very blunt ruling in Parents Involved) and an inversion of American federalism. But that generation of conservatives were basically followers of Justice Frankfurter, and they tended to argue that it was 1960s/70s judicial liberalism that they were against, which they claimed was a kind of Lochnerism of the left. That kind of judicial conservatism—which was really Robert Bork’s style of conservatism, and the origin of his version of originalism—is in very stark contrast to legal libertarianism that inspired the case against the ACA.

Roberts went quite far in the direction of validating the constitutional sense of the case against the ACA, but what caused him to come down where he did is an entirely different mood than the folks who brought this case. In short, Roberts is not a conservative cut from the Randy Barnett/Richard Epstein cloth, which is comfortable with quite sweeping uses of judicial power to limit government. Roberts is sympathetic but simply lacks the taste for the jugular that they have, either as a result of his role as Chief Justice or his prudential sense of how far it is reasonable for the Court to go in using its power.

Teles’s explanation for Roberts’s behavior appeals to those of us who have followed the development of the conservative legal movement and the ideas that animated it. But I don’t find it persuasive, primarily because it requires one to assume that the NFIB case was approached differently by two kinds of “conservatives.”

Chief Justice Roberts and the Changing Conservative Legal Movement

July 10, 2012

Author: Joel Alicea
Source: Public Discourse

The clash between Chief Justice Roberts’ opinion and that of the joint dissenters is best seen as a clash between two visions of judicial restraint, and two eras of the conservative legal movement.

At the sprightly age of 57 and less than seven years into his term as chief justice, John Roberts looks like a man whom time has left behind. The reaction among legal conservatives to the Roberts opinion in National Federation of Independent Businesses v. Sebelius (the healthcare case) has been brutal. Many have accused the chief justice of exchanging the black robes of the jurist for the trappings of the politician. The chief justice is said to have “blinked” and “failed [his] most basic responsibility.” Noted originalist scholar Mike Rappaport strongly implied that Roberts is “both a knave and a fool.” The cataloguing could go on.

As much as these reactions reveal about differing views on a hotly contested question of constitutional law, they are at least as interesting because of what they say about the state of the conservative legal movement. Today’s legal conservatives view the chief justice’s opinion as judicial abdication, but it was not too long ago that the philosophy reflected in Roberts’ opinion would have been conservative orthodoxy. The truth is that the conservative legal movement’s conception of judicial restraint has changed, departing from the view it held when it emerged from the constitutional wilderness to which it had been banished during the Warren Court. NFIB v. Sebelius displays a conservative legal movement in transition—and one that is increasingly leaving the judicial restraint in Roberts’ opinion behind.