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Making Our Democracy Work

Page 11

by Breyer, Stephen


  As the argument proceeds, the judge may modify his view of the facts or of related assumptions. He or she may decide that other basic principles are more directly applicable to the facts at hand. Those involved in the argument may speak at different times at different levels of generality, sometimes referring to specific facts, sometimes to intermediate (more general) facts, sometimes to general principles, and sometimes to consequences (sometimes specific, sometimes more general) evaluated, in turn, by principles, sometimes more, sometimes less specific in nature. Any of these parts of the argument may reshape the judge’s views of any of these matters as the argument proceeds.

  This may sound complicated, but consider how most practical arguments proceed: Should we invite your cousin to the wedding? Should we relocate the plant, when and where? As is true of any practical argument, including moral arguments, rarely does a single theory provide a determinative answer. Afterward, legal scholars or philosophers may use a set of determinative theories to evaluate the legal conclusion (as is true of a moral conclusion), but the judge rarely has the time to do so.

  Consider how a judge actually decides an open, difficult legal question objectively even when he or she cannot discover a single legal theory that dictates an answer. A particular case will help show how the judge’s decision rests upon an evaluation of the purposes underlying a phrase, along with a pragmatic understanding of how the phrase means to help the institution work. At the same time, it shows how different judges might reach different conclusions without “subjective preferences” or “politics” providing the most plausible explanation of the differences.

  The case involves Article I, Section 2, Clause 2 of the Constitution, which says,

  No Person shall be a Representative who shall not have attained to the Age of twenty-five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

  Arkansas added a further term-limits requirement. Would-be candidates for Congress in Arkansas could not place their names on the ballot if they had already served three terms. Whether this provision violates the Constitution turns on whether Article I sets forth three requirements (twenty-five years old, seven years a citizen, inhabitant of the state) that are exclusive or that constitute a minimum, leaving the states free to add more. The question is difficult. Should the state not be free to exclude, say, those who are mentally ill? But if the state is free to do so, then would the state not also be free to add a property-ownership qualification?12

  In U.S. Term Limits v. Thornton, the case itself, most of the considerations that might help a judge find an answer were almost perfectly balanced. The language favors “minimums” but only slightly. Supreme Court precedent favored “exclusive,” but it was not definitive. Hamilton and Madison argued that the requirements were “exclusive.” Jefferson and Joseph Story argued that they set “minimums.” Many states in 1789 maintained property requirements for public office. But only one state, Virginia, applied those requirements to candidates for federal office. The Tenth Amendment, reserving to the states (or the people) all powers not delegated to the federal government, seems to favor a “minimums” reading; but the federal nature of the legislative body at issue, namely, Congress, argues for uniform (hence “exclusive”) federal requirements.

  With these and similar arguments counterbalancing each other, the following considerations become critical. To decide against Arkansas would make it virtually impossible for any state to impose term limits on its federal officeholders. But to find in Arkansas’s favor could significantly change the way Congress works, either in a democratic direction (by assuring members in closer touch with the state) or in an undemocratic direction (by giving experienced congressional staff members more power). A judge who sees in the Constitution’s division of power between federal and state governments an effort to maintain the influence, power, and authority of the individual states would likely place more weight on the first consideration, the need not to restrict state power. A judge who sees the Constitution as creating a tamper-free method for obtaining a democratically elected federal legislature would likely place more weight on the second consideration, the need to prevent a single state from changing the way Congress functions.

  The Court by a vote of 5 to 4 held Arkansas’s term-limits requirement unconstitutional. Whatever one thinks about the merits of that decision, it is difficult to characterize it as “political,” “ideological,” or even “subjective.” The division between the judges may reflect different points of view—arising from differences in judges’ backgrounds and experiences. It may involve different judgments about what interpretation will better help the constitutional provision work effectively. But such differences are inevitable in a judicial body composed of different members selected by different presidents at different times. And, given the diversity present in a nation of 300 million individuals, these kinds of differences among nine Supreme Court justices are healthy and desirable.

  Other examples will further illustrate the general pragmatic approach I have in mind. They come from different areas of the law, including statutory interpretation, administrative review, federalism, and individual rights. This diversity is important. Although a pragmatic approach seeks a workable Constitution, not all applications of that approach involve interpretation of the Constitution itself. In fact, most of the Court’s work involves interpretations of federal statutes, federal/state relationships, and judicial review of administrative actions, rules, or regulations (see Appendix B). That is because writing statutes and rules makes up much of what government does. A workable Constitution requires judges to remain aware of appropriate institutional roles and relationships in all these areas.

  None of the examples I provide in the remainder of this part suggests an all-encompassing theory about how to decide every case in each area. Rather, the examples point to legal tools that are useful for deciding cases in ways that take advantage of the relative competencies of our different government institutions, respect the relationships among these institutions, and make sense in practice. The result is a workable Constitution and continued public faith in the Court’s decisions.

  Chapter Eight

  Congress, Statutes, and Purposes

  THE CONSTITUTION DELEGATES legislative power to Congress. Congress’s basic job is to exercise that power by enacting statutes (normally with the president’s consent). The Court’s basic job is to interpret those statutes, not in the abstract, but by determining how they should be applied in particular cases. And sometimes the Court must also decide whether a statute is constitutional. These tasks make up by far most of the Court’s work. How the Court performs those tasks determines whether its interpretations will effectively carry out the statute’s objectives and helps determine whether its relationship with Congress will tend more toward the cooperative or the confrontational.

  Ordinarily, cases that reach the Supreme Court involve ambiguous statutory language. When judges interpret that language, they look to the words at issue, to surrounding text, to the statute’s history, to legal traditions, to precedent, to the statute’s purposes, and to its consequences evaluated in light of those purposes. Of these I find the last two—purposes and consequences—most helpful most often. I believe maintaining a strong workable relationship with Congress requires the Court to use these two tools to help unlock the meaning of a statutory text. A strong relationship, in turn, helps the nation’s institutions, and the law, function well.

  An example will help illustrate this kind of judicial task. In 2008, in France, a train conductor collecting fares found that a passenger had a basket containing two dozen live snails. The passenger, a kindergarten teacher, was bringing them from his home in Normandy to Paris, where he intended to use them for classroom instruction. The conductor’s fare booklet said that “purchase of a ticket is required for all animals.” The booklet also provided that the fare for an animal should cost half the price of an o
rdinary ticket, adding that “if the animal weighs less than six kilograms and is carried in a basket, the fare for the animal shall be no more than 5.10.” The conductor thus asked the teacher to buy a 5.10 ticket for the snails. The teacher protested that the fare booklet rule surely was not referring to snails. Nonetheless, he paid. The press wrote about the incident, and the train company eventually reimbursed the teacher. But who was right? And why? For that matter, should the conductor have required the teacher to buy two dozen tickets—one for each snail? Here, reduced to its essence, is a problem akin to that of interpreting an ambiguous statute.1

  TEXT-ORIENTED INTERPRETATION

  SOME JUDGES, LAWYERS, and law teachers believe that judges, when answering this kind of question, should strongly emphasize the first four tools that I mentioned: text, history, tradition, and precedent. Following this text-oriented approach, they try not to use purpose, consequences, or the legislative debates that compose the history of the statute’s enactment in Congress. In my view, however, a primarily text-oriented system cannot work very well. A more realistic example will help me explain why.

  A federal statute permits citizens to sue the government and to recover damages for serious harm that federal officials wrongfully caused, including harm to their property. But the act contains a series of exceptions, including an exemption for harm to property caused by “any officer of customs or excise or any other law enforcement officer.” Whom exactly does the exempting phrase, “any other law enforcement officer,” cover? Does it cover only those law enforcement officers who carry out “customs or excise” duties? Or does it cover (and exempt from liability) other law enforcement officers as well, such as federal prison officials?2

  Text-oriented judges will carefully examine the statute’s language. They may refer to a dictionary or look to surrounding language. They will see if the phrase has some special traditional or historical meaning. They will search the precedent, and, failing to find any strong reason for giving the words a specialized meaning, they will try to give them the meaning they carry in ordinary, non-statutory life. In this case, the key words “any other” are not technical, and dictionaries, history (other than legislative history), tradition, and precedent do not suggest any specialized meaning. So the judge may well conclude that the words “any other” mean what they say, namely, suit is barred against any other law enforcement officer, including prison officials.

  What is wrong with that? Let us break this question down into two parts: First, what is wrong with the assumption that language in a statute means what it means in ordinary life outside the statute? Unfortunately, such an assumption is rarely helpful. As those who study language have pointed out, we use words, strung together in sentences, uttered on particular occasions orally or in writing, to perform many different functions. We use them to ask questions, to make statements, to agree with others, to write contracts, to perform marriages, to pray, to vow, to inform, to estimate, to recommend. We also use them to write laws—a highly specialized activity. The assumption begs the further question: What part of “ordinary life”?3

  The statute’s language may be vague, and the scope of its coverage may be uncertain. But it does not help us understand a vague statement to pretend that someone else “in ordinary life” made the statement. How often would it help us understand, say, a difficult point in a university lecture to pretend that the lecturer is not a lecturer but a journalist? Similarly, how often does it help us understand a statute’s vague or ambiguous language to pretend that its congressional authors were engaged in any activity other than the one they were engaged in, namely, writing a statute?

  It is also rarely helpful to rely on dictionaries. Nothing is wrong with turning to the dictionary when a court is trying to interpret a technical word, say the word “percentile” used in a special technical sense in a statute that incorporates the understanding of professional statisticians. In such a case, Congress might well have intended non-statisticians to look to a dictionary to discover how statisticians use the word.4

  Far more often, however, statutory uncertainty does not arise because the statute’s language has an unclear technical meaning or because ordinary readers fail to understand the general kinds of situations to which the statute’s language refers. We all know the meaning of the words “any other law enforcement officer.” We need not look them up in a dictionary. Rather, here the statute is ambiguous or uncertain in respect to the scope of its coverage. Its general language does not tell us precisely which situations fall outside Congress’s demonstrative intent.

  Suppose a statute uses the phrase “any court.” We have no trouble understanding the words, but we may have trouble understanding whether the statute includes foreign courts or limits its scope to American courts. Does a naturalist who tells us “all the beavers are out swimming” mean to include those beavers just born? Does a friend who says “all bicycle shops carry water bottles” mean to include secondhand bicycle shops? Context revealing a speaker’s purposes, not a dictionary that explains a word’s meaning, provides the necessary help here. Sam’s mother tells him, “Go to the store and buy some ice cream, flour, fruit, and anything else you want.” It is context, not a dictionary, that will help us learn whether Sam’s mother has given him permission to buy fifteen comic books.5

  Now reconsider the phrase in our example, “any officer of customs or excise or any other law enforcement officer.” We can be certain that the word “any” here does not refer to any other law enforcement officer in the universe. It does not refer, say, to a German law enforcement officer. Gazing however thoughtfully at the words or consulting a dictionary will not help us discover which law enforcement officers Congress intended the phrase to cover. We must look further. Who wrote the words? And we must look to the purpose. Why did they write them?

  In this case, it turned out that the statute’s drafters drew the language from a similar exemption found in English law. English law limited its exemption to a small subset of all law enforcement officers. Moreover, it was difficult to determine why, in the context of a statute that expanded citizen remedies, Congress would have wanted to limit so severely an injured person’s right to recover. For these and other reasons related to Congress’s purposes, I would have interpreted the exempting phrase to refer only to those law enforcement officers who performed tasks related to customs and excise duties.6

  INTERPRETATION BASED ON PURPOSES AND CONSEQUENCES

  NOW LET US consider an approach that relies more heavily on purposes and consequences. To determine a provision’s purpose, the judge looks for the problem that Congress enacted the statute to resolve and asks how Congress expected the particular statutory words in question to help resolve that problem. The judge also examines the likely consequences of a proposed interpretation, asking whether they are more likely to further than to hinder achievement of the provision’s purpose. In doing so, a judge may examine a wide range of relevant legislative materials. Furthermore, the judge can try to determine a particular provision’s purpose even if no one in Congress said anything or even thought about the matter. In that case the judge (sometimes describing what he does in terms of the purpose of a hypothetical “reasonable legislator”) will determine that hypothetical purpose in order to increase the likelihood that the Court’s interpretation will further the more general purposes of the statute that Congress enacted.

  An example based on an actual case will show how courts might use purposes and consequences in practice. A federal statute gives disabled children the right to a “free appropriate public education.” Pearl and Theodore Murphy have a son, Joseph, who suffers from severe learning disabilities. In September 1997 the Murphys, after receiving a specialist’s report that Joseph had a “near total incapacity to process language,” decided that the public school district had failed to provide him with the statutorily required “appropriate education.” The Murphys thought the school district should not have placed Joseph in classes with nondisabled students.7


  The statute provides that parents who disagree with a school district’s plan for educating their disabled child can contest the plan before state administrative officials. The Murphys did so. The state hearing examiner and an appellate administrator both eventually agreed that the Murphys were right and the school district should pay the cost of placing Joseph in a specialized private school. The school district, however, still hesitated to do so.8

  The statute also provides that parents such as the Murphys can bring a lawsuit against the school district in a federal court. The Murphys did so and eventually won. The court ordered the district to pay for Joseph’s education at a private school.9

  All these proceedings were expensive. The Murphys had hired an educational expert, who charged them $29,000 for her help. The courts later found that the expert’s services were well worth that price. But the Murphys, who were people of modest means, asked the school district to reimburse them for the cost not only of their lawyers but also of their expert. When the district refused, they asked the court to require the school district to pay.10

  At this point the court had to decide whether it had the power to order the school district to reimburse the Murphys. The federal statute says that the court may “award” a prevailing party like the Murphys “reasonable attorneys’ fees as part of [their] costs.” The Murphys argued in court that the word “costs” includes the fees of experts they had to hire to support their case. The district argued that the statutory phrase did not include expert fees. That was the question of statutory interpretation that reached the Supreme Court.11

 

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