A Republic, If You Can Keep It
Page 6
As you can see, the two sides disagreed pretty avidly and colorfully. But notice, too, neither appealed to its views of optimal social policy. Their dispute focused instead on grammar, language, and statutory structure. In fact, I have no doubt several justices found themselves voting for an outcome they would have rejected as legislators. Now, one thing we know about Justice Scalia is that he loved a good fight—and it might be that he loved best of all a fight like this, over the grammatical effect of a participial phrase. If the Court were in the business of offering homages instead of judgments, it would be hard to imagine a more fitting one than this. Surely when the Court handed down its opinions that day, the justice sat smiling from some happy place.
But every worthwhile endeavor attracts its critics. And Justice Scalia’s project is no exception. The critics come from different directions and with different agendas. Professor Ronald Dworkin, for example, once called the idea that judges should faithfully apply the law as written an “empty statement” because many legal documents like the Constitution cannot be applied “without making controversial judgments of political morality in the light of [the judge’s] own political principles.” My admirable colleague Judge Richard Posner has also proven a skeptic. He has said it’s “naive” to think judges actually believe everything they say in their own opinions, for while they often deny the legislative dimension of their work, the truth is that judges must and should consult their own moral convictions or consequentialist assessments when resolving hard cases. Immediately after Justice Scalia’s death, too, it seemed so many more added their voices to the choir. Professor Laurence Tribe, for example, wrote admiringly of the justice’s contributions to the law. But he tempered his admiration by seemingly chastising the justice for having focused too much on the means of making judicial decisions and not enough on results, writing that “interpretive methods” don’t “determine, much less eclipse, outcome[s].”
Well, I’m afraid you’ll have to mark me down as naive, a believer that empty statements can bear content, and an adherent to the view that outcomes (ends) do not justify methods (means). Respectfully, it seems to me that an assiduous focus on text, structure, and history is essential to the judicial function. That, yes, judges should be in the business of declaring what the law is, using the traditional tools of interpretation, rather than pronouncing the law as they might wish it to be in light of their own political views, always with an eye on the outcome, and engaged perhaps in some Benthamite calculation of pleasures and pains along the way. Though the critics are loud and the temptations to join them may be many, mark me down, too, as a believer that the traditional account of the judicial role Justice Scalia defended will endure. Let me offer you three reasons for my faith on this score.
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FIRST, CONSIDER THE CONSTITUTION. Judges must do more than merely consider it. They take an oath to uphold it. So any theory of judging in this country must at least be measured against that foundational duty. Yet it seems to me that those who would have judges behave like legislators, imposing their moral convictions and utility calculi on others, face an uphill battle when it comes to reconciling their judicial philosophy with our founding document.
After all, at the Constitutional Convention the framers debated a proposal very much like what the critics now suggest, one that would have incorporated the judiciary into a “council of revision”—one with sweeping powers to review and veto congressional legislation. But that proposal went down to defeat, overwhelmed by the contrary view that judges should expound upon the law only as it comes before them, free from the bias of having participated in its creation and from the burden of having to decide “the policy of public measures.” In place of a system that mixed legislative and judicial powers, the framers chose one that carefully separated those powers. The Constitution reflects this design, devoting distinct articles to the “legislative Power[]” and the “judicial Power,” creating separate institutions for each, and treating those powers in contradistinction.
Neither were these separate categories empty ones to the founding generation. Informed by a hard-earned intellectual inheritance—one perhaps equal parts English common law experience and Enlightenment philosophy—the founders understood the legislative power as the power to prescribe new rules of general applicability for the future. A power properly guided by the will of the people acting through their representatives, a task avowedly political in nature, and one unbound by the past except to the extent that any law must conform to the higher law of the Constitution itself.
Meanwhile, the founders understood the judicial power as a very different kind of power. Not a forward-looking but a backward-looking authority. Not a way for making new rules of general applicability but a means for resolving disputes about what existing law is and how it applies to discrete cases and controversies. Itself a necessary incident to civil society but a distinct one. One that calls for neutral arbiters, not elected representatives. One that is further bound to the past by its respect for precedent and analogy, its use of past cases as a tool for resolving current ones. And by its general rule limiting the court’s focus to the arguments the parties have chosen to present for decision. To an adherent of this traditional view of judging, the task in any case is to interpret and apply the law as a reasonable and reasonably well-informed citizen might have understood when it engaged in the activity at issue in the case or controversy—not to amend or revise the law in some novel way.
So many specific features of the Constitution confirm what its larger structure suggests. For example, if the founders really thought legislators free to judge and judges free to legislate, why would they have gone to such trouble to limit the sweep of legislative authority—insisting that any new law must survive the arduous process of bicameralism and presentment (passage through two separate houses and presentment to the president for approval or veto)—if judges could perform the same essential function without similar safeguards? And why would they insist on legislators who are responsive to the people but then allow judges to act as legislators without accountability to the people? Why, too, would they have devised a system that allows equally unrepresentative litigants to define the scope of debate based on their narrow self-interest? And if judges were to legislate new rules of general applicability for the future, why would the founders have considered precedent as among the primary tools of the judicial trade rather than more forward-looking instruments like empirical data? And why would they have entrusted decisions to a single or few judges, aided only by the latest crop of evanescent law clerks, rather than on a larger body with more collective expertise?
In response to objections like these, Judge Posner has replied that “American appellate courts are councils of wise elders and it is not completely insane to entrust them with responsibility for deciding cases in a way that will produce the best results” for society. But, respectfully, even that’s not exactly a ringing endorsement of judges as social utility optimizers, is it? I can think of a lot of things that aren’t completely insane but still distinctly ill-advised (or so I try to convince my teenage daughters). And, respectfully too, wouldn’t we have to be at least a little crazy to recognize the Constitution’s separation of judicial and legislative powers and the duty of judges to uphold it, but then applaud when judges ignore all that to pursue what they have divined to be the best policy outcome? And crazy not to worry that if judges consider themselves free to disregard the Constitution’s separation of powers, they might soon find other bothersome parts of the Constitution equally unworthy of their fidelity?
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THIS OBSERVATION LEADS TO a second. It seems to me that the separation of legislative and judicial powers isn’t just a formality dictated by the Constitution. To the founders, the legislative and judicial powers were distinct by nature and their separation was among the most important liberty-protecting devices of the constitutional design
, an independent right of the people essential to the preservation of all other rights later enumerated in the Bill of Rights. Though much could be said on this subject, tonight permit me to suggest a few reasons why defending the legislative-judicial divide is critical to preserving our bedrock guarantees of due process and equal protection.
Consider if we allowed the legislator to judge. If legislatures were free to act as judges and create backward-looking rules, they would also be free to punish individuals for completed conduct they’re unable to alter. And to do so without affording affected individuals any of the procedural protections that normally attend the judicial process, raising along the way serious due process questions. How can a citizen ever have fair notice of the law or order his or her affairs around it if the lawmaker can go back in time and outlaw what was reasonably thought lawful at the time? And how might the average citizen ever hope to intervene in that legislative process to prevent that very prospect? With due process concerns like these come equal protection problems too. If legislators could routinely act retroactively, what would happen to disfavored groups and individuals? With their past actions known and unalterable, they would be easy targets for discrimination. No doubt worries like these are exactly why the founders prohibited bills of attainder and ex post facto laws criminalizing completed conduct, and why baked into the “legislative Power[]” there’s a presumption as old as the common law that all legislation bears only prospective effect.
Now consider the converse situation—if we allowed the judge to legislate. Unconstrained by the procedural hurdles of Article I, the judge would need only his or her own vote or those of just a few colleagues to change the law and the task of legislating would become a relatively simple thing. With the power to act retroactively, too, all the concerns just discussed about fair notice and equal protection would attend here with equal force. Could parties really hope to conform their conduct to the law’s demands, or would they be left to the mercy of whatever retroactively applied rule whatever future judicial legislator they happen across might prefer? And what might the temptation be for the judge to use his or her newfound legislative authority to help favored parties and hurt disfavored ones? Notice as well how hard it would be to revise this so-easily-made judicial legislation to account for changes in the world or to fix mistakes. Unable to throw judges out of office in regular elections, you’d often have to wait for them to die before you’d have any chance of change. And even then you’d find it difficult to do so, for courts cannot so easily undo their errors given the weight they afford precedent. It seems to me that for reasons just like these Hamilton explained that “liberty can have nothing to fear from the judiciary alone,” but “ha[s] everything to fear from [the] union” of the judicial and legislative powers. William Blackstone painted an even grimmer picture of a regime where judges are free to legislate, suggesting that there “men would then be[come] slaves to their magistrates.”
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AT THIS POINT I can imagine the critics replying this way. Sure, judges should look to the traditional tools of text, structure, history, and precedent. But in hard cases those materials will prove indeterminate. So some tiebreaker is needed and that’s where the judge’s political convictions, a consequentialist calculus, or something else comes into play. Respectfully, though, I’d suggest to you the critics’ conclusion does not follow from their premise. If anything, replies along these lines seem to me to wind up supplying a third and independent reason for embracing the traditional view of judging—because it compares favorably against its alternatives.
Now, I do not mean to suggest that traditional legal tools will always yield a single definitive right answer in every case. Of course, Ronald Dworkin famously thought otherwise, contending that a Herculean judge could always land on the right answer. But at least in my experience most of us judges don’t much resemble Hercules—there’s a reason we wear loose-fitting robes—and I accept the possibility that some hard cases won’t lend themselves to a clear right answer.
At the same time, though, I’d suggest to you that the amount of indeterminacy in the law is often exaggerated. Law students are fed a steady diet of hard cases in casebooks stuffed with the most vexing and difficult appellate opinions ever issued. Hard cases are, as well, the daily bread of the professoriate and a source of riches for the more perfumed advocates in our profession. But I wonder: How often do they share with you students these facts? Every year, more than 360,000 cases are filed in our federal courts and maybe 50 million more are filed in our state courts (not counting traffic cases). Yet in the federal system the vast majority of cases are resolved by our trial courts. Losing parties may not like the result, but they usually accept the outcome as reasonably just. In fact, only about 5.6 percent of federal lawsuits make it all the way to decision in an appellate court. And even among the small sliver of cases that make it so far, about 95 percent are resolved unanimously by the courts of appeals. That’s no small thing, especially when you recall that on the courts of appeals we sit in panels of three and, as a Tenth Circuit judge, I sit with judges from six states appointed by presidents spanning from President Barack Obama all the way back to President Lyndon Johnson. Nor is that the end of it. Out of the millions of cases filed every year, only about seventy cases reach the Supreme Court. These are the very hardest cases, usually ones where lower courts have disagreed strongly. Yet even in these difficult matters, all nine justices (not just three judges) are able to agree unanimously about 40 percent of the time. That despite the fact the justices come from all across the country and were appointed by different presidents over a span of decades. And that figure has remained remarkably constant all the way back to World War II. Focusing on the hard cases may be fun, but doesn’t it risk missing the forest for the trees?
And doesn’t it also risk missing the reason why such a remarkable percentage of legal disputes are resolved this way? The truth is that the traditional tools of legal analysis do a remarkable job of eliminating or reducing indeterminacy. Yes, lawyers and judges may sometimes disagree about which canons of construction are most helpful in the art of ascertaining Congress’s meaning in a complicated statute. We may sometimes disagree over the order of priority we should assign to competing canons of construction. And sometimes we may even disagree over the results they yield in particular cases. But when judges pull from the same toolbox and look to the same materials to answer the same narrow question—What might a reasonable person have thought the law was at the time?—we confine the range of possible outcomes and provide a remarkably stable and predictable set of rules people are able to follow. And even when a hard case does arise, once it’s decided it takes on the force of precedent, becomes an easy case in the future, and contributes further to the determinacy of our law.
Besides, it seems to me that even accepting that some hard cases remain, it just doesn’t follow that we must or should resort to our own political convictions, consequentialist calculi, or any other extralegal rule of decision. Just as Justices Sotomayor and Kagan did in Lockhart, we can make our choice based on a comparative assessment of the various legal clues: choosing whether the rule of the last antecedent or one of its exceptions best fits the case in light of the particular language at hand. At the end of the day, we may not be able to claim confidence that there’s a certain and single right answer in every case, but there’s no reason why we cannot make our best judgment depending on (and only on) conventional legal materials, relying on a sort of closed record, if you will, without peeking to outside evidence. No reason, too, why we cannot conclude for ourselves that one side has the better of it, even if by a nose, and even while admitting that a disagreeing colleague could see it the other way. As Justice Scalia once explained, “Every canon is simply one indication of meaning; and if there are more contrary indications (perhaps supported by other canons), it must yield. But that does not render the entire enterprise a fraud—not, at least, unless the ju
dge wishes to make it so.”
Neither do I see the critics as offering a better alternative. Consider a story Justice Scalia loved to tell. Imagine two men walking in the woods who happen upon an angry bear. They start running for their lives. But the bear is quickly gaining on them. One man yells to the other, “We’ll never be able to outrun this bear!” The other replies, calmly, “I don’t have to outrun the bear, I just have to outrun you.” As Justice Scalia explained, just because the traditional view of judging may be imperfect for some small set of cases doesn’t mean we should or must abandon it. The real question is whether the critics can offer anything better.