December 3, 2006

"I'm sure that there are some conservatives out there who break out in hives when they hear a judge talking about activism."

Said Chris Wallace, interviewing Justice Stephen Breyer about his book "Active Liberty," on "Fox News Sunday" this morning. Breyer flipped out, turned bright red, and started accusing him of doing a right wing hit job. Just kidding. Can you even picture Breyer getting mad?

A taste:
WALLACE: Let's start with the title of your book, "Active Liberty." I'm sure that there are some conservatives out there who break out in hives when they hear a judge talking about activism. They get the idea you think it's OK to read all sorts of things into the Constitution so you get the results you want.

BREYER: I think the best description in one sentence of that title, "Active Liberty," is that the point of the book is we don't need activist judges; we do need activist citizens. And it's about not how judges should be activists. To the contrary, it's about how every citizen should participate in government.

WALLACE: But let's talk about that. Because in your book, you say that judges have various tools when they decide a case. And more important even than the language of the law, you say, are the purpose of the provision and the consequences of deciding it one way or another.

I want to put up a quote from your book and take a look at it, if you will. Here it is: "Since law is connected to life, judges, in applying a text in light of its purpose, should look to consequences including contemporary conditions, social, industrial and political, of the community to be affected."

Justice Breyer, when a judge takes it upon himself to interpret what purpose the founders, the framers meant when they put something in the Constitution, doesn't that allow them, a judge, to do almost anything?

BREYER: No, I think it's the contrary.

You see, it takes place in a context. I think whether you are a judge on my court or whether you are a judge on a court of appeals or any court, and lawyers too — and if you're interested in law yourself, you'll be in the same situation — you have a text that isn't clear.

If the text is clear, you follow the text. If the text isn't clear, you have to work out what it means. And that requires context.

The freedom of speech. Do you know what it means? Basically. But you don't know its entire content, and it doesn't tell you itself. Those words, "the freedom of speech," "Congress shall pass no law abridging the freedom of speech." Neither they, the founders, nor those words tell you how to apply it to the Internet.

So what can you use in a tough case to figure out how the First Amendment applies to cable television and requirements that cable carry over-the-air stations? How do you do it?


Anonymous said...

Justice Breyer's comments seem perfectly reasonable. Activism is best left to the people.

Law does not exist in a vacuum. Context is important, but the context question is a thorny one. How far afield should a justice cast his or her net, looking for appropriate context. In my opinion, not very far.

Ambiguities are better resolved by the people.

Simon said...

I don't think anyone is (all right, I don't think that very many people are) disputing that laws originate in context, and in the Constitution's case, the context is the common law. I can't speak for other textualists, and some of them will probably disagree with this, but I think that the principle difference between purposivists/intentionalists and formalists/textualists/originalists, whatever definitional word you prefer, is that the textualist is interested in what the text meant to a reasonable person, while an intentionalist is trying to conduct a seance-like reconstruction of how a reasonable legislator might have written a law to achieve their purpose.

There are a few of problems with that. The first is that, despite Breyer's protestations, it is inherently standardless. Second, it is the text - not the intentions - that has been agreed to by both chambers and signed by the President. Third, that inquiry inherently injects the jurist into the legislator's role; having determined the purpose of a statute, there is not necessarily a singular "reasonable" interpretation; what is is that Justice Breyer thinks that the legislative process is about? Often, even when Republicans and Democrats agree on a bill's purpose, they might have very different ideas of what is a "reasonable" solution. And fourth, I think we'd all agree that law is a public enterprise, and secret law is fundamentally illegitimate. Moreover, there always has to be the possibility - even if it is but a legal fiction - that a person who breaks a law have been at least on some level been able to have been able to make themselves aware of the law's content. If that is so, then it is hard to justify adverting to what a hypothetical legislator might have intended, even at the expense of what a reasonable person reading the law might

At oral argument once, Larry Tribe ran over time, and averred that he'd been intending to reserve some of his time for rebuttal. The Chief Justice replied, typical Rehnquist, bluntly: "you didn't." A legislator who protests "I didn't mean that!" when a textualist judge gives a reading to a statute should receive a similar answer: "that's what you wrote, though." It is the law that governs, not the intentions of any particular legislator.

My problem with purposivism isn't inherent to the purposive inquiry, it's that it is usually used as a way to go around the text, rather than to shed light on it. I agree with Justice Breyer that general propositions do not decide concrete cases, and that ajudication is not always easy or mechanical; I think that conservatives who aren't engaged with legal matters have often tended to brush over that fact, to the detriment of the debate, brandishing slogans like "strict construction" and "original intent" that they do not understand the import of. But that doesn't mean that Breyer's solution is right.

Simon said...

Let me say something else that's been on my mind lately. I think Breyer's remarks about the first amendment appropriately showcase it. If I understand Breyer's remarks, both here and in Active Liberty, he looks at the Bill of Rights as a codification of the rights the Declaration of Independence speaks of. So, in this case, he sees the First Amendment as a codification of the natural and unalienable right to free speech; hence, when he evaluates McCain-Feingold, he is concerned to balance the right of the rich to speak against the power of the rich to drown out other speakers.

I don't agree with that.
I think that Breyer's balancing test is way off the mark because one of the things he is weighing is not a First Amendment concern. I think that the Constitution has a fundamentally different approach to natural rights. Simply put, I don't believe that the First Amendment guarantees the right to free speech. What the First Amendment does is to prevent the government from taking away that right to free speech, which is why it begins by saying "Congress shall make no law..." It does not say "each person shall have the freedom of speech," it says that the government (or, more specifically, Congress - which is another reason why strict construction is spinach) may not invade that right. And if you don't think that, then Barron v. Baltimore was wrongly-decided, because if the Bill of rights is a codificationo of natural law that confers rights directly on the people, it makes no sense for it to have applied only to the Federal government before the 14th Amendment incorporated it against the states.

So applied to the campaign finance cases, that's an easy one for me. If the first amendment doesn't guarantee your right to speak, or to be heard above the din, if it doesn't guarantee that every voice will be heard in the debate, if the Bill of Rights operates as a restraint on the power of what government may do, then the balancing test Justice Breyer proposes is moot. While there are obviously balancing tests in the area of the first amendment (fighting words; obscenity; commercial speech; fire in a crowded theater and so on) the core guarantee of the First Amendment is to prohibit laws impeding political speech, and the only question, therefore, is whether McCain-Feingold is a governmental restriction on political speech. It was, and therefore violated the First Amendment.

Unknown said...

But, Simon, what do you do when the text either is ambiguous or its apparent surface meaning leads to an absurd result and that meaning is plainly contradicted by "context"?

It's all well and good to suggest that reaching behind the text is "standardless," but sticking to the text is often no less arbitrary.

And Breyer's point is that relying on context is NOT standardless. Context may be indefinite, but it's not fictional. From context parties make their arguments, and there are better and worse arguments.

Tim said...

"But, Simon, what do you do when the text either is ambiguous or its apparent surface meaning leads to an absurd result and that meaning is plainly contradicted by "context"?"

I won't presume to answer for Simon, but this question gets to the problem with Breyer's position - which basically comes down to "we've the power to decide, so we will - especially when the law is ambiguous (i.e., lets us decide)".

I disagree. Yes, the court(s) should decide when its decision is transparently consistent with the context in which the law was enacted (and consistent with the liberties preserved for the people in the Constitution); in cases where the plain meaning of the law leads to an absurd result, the court should rule consistent with the law and, noting the absurdity of the ruling, publicly notify the Legislature through the opinion of this absurdity with a suggestion the Legislature fix the law (which is its job, not the courts'). Expecting courts to fix seemingly absurd results of the law is not only not the court's job, it is a loophole large enough to permit judges to legislate.

Or do you really think no judge has ever legislated from the bench? And if you concede that they have, why is it ever right for them to do so? Who elected them to that job, and why does it not violate the separation of powers?

Tim said...

PS: By alerting the legislature of absurd results, I by no means mean the situation in Massachusetts whereby the legislature was effectively under court order to approve some form of legal marriage for homosexuals by a specific deadline. Courts should denote the absurd result, notify the legislature of it, and then let the people's elected representatives figure out what to do.

Simon said...

I thank you, but I'll settle quite happily for the Seventh Circuit. ;) (Actually, a serious point wrapped up in that: I don't think that anyone who hasn't been on an appellate court for a period of time should be nominated to the Supreme Court). On the Commerce Clause, in general terms, I don't really have much to add to Justice Thomas' Lopez concurrence, except to say that I take a slightly broader view of stare decisis and of the necessary and proper clause than does Justice Thomas - I don't agree with Justice Scalia's concurrence in Raich, but I don't think it's an absurd result. In practical terms, that means I would probably take a narrower view of Congressional power than mostly anyone the 110th Senate would confirm, but I'm not a revolutionary. ;)

I recognize that there are obviously times when you have ambiguous text, but I think it's easy to overstate just how often you have serious, intractable ambiguity; in most cases, there are ways around that - structural analysis, for example, Chevron deference in some cases, canons of construction and so on. As to absurd results, Justice Scalia has suggested (Green v. Bock Laundry Machine Co., IIRC) that when a statute might lead to absurd results, courts should reach back into the legislative record, including normally-proscribed materials such as reports and legislative history. I'm not sure that's correct, or reconcilable with my version of textualism.

Lastly, it isn't reaching beyond the text, per se, that is standardless, but reaching for evidence of something fictive: intent.

I have to rush out the door, so this is more truncated a reply than I had intended...

Unknown said...

I certainly am familiar with the critique of finding legislative "intent," but what instead is it you're engaged in finding when you apply "structural analysis," deference, or some canon of construction?

Simon said...

Again, I add the disclaimer that not all textualists would agree with this, but my criterion -- what I'm looking for, both in statutory construction and constitutional interpretation -- is this: what is the most natural and reasonable reading of this statute, all things being considered, that a reasonable person would have understood this text to mean at the time it was adopted.

Justice Breyer and I totally agree on this much: "If the text is clear, you follow the text. If the text isn't clear, you have to work out what it means. And that requires context." The difference is, it seems to me, that Justice Breyer and I look to different contexts because I am interested in what a disinterested observer would have understood the words of the text to mean, at that time, while Justice Breyer, I think, is interested in what the legislature "actually meant," something that (a) never exists and (b) that the general public could not possibly have known. A legislature speaks through the texts it adopts. It's the text that's law. And of course that means that you consider context - what is a "reasonable" search? You can't answer that without understanding the common law as it existed in 1791. What is "the judicial power"? You can't answer that without understanding what courts and judges did in 1788. If you ask yourself "what is the power to 'law taxes'," you are inquiring what a reasonable person in 1788 would have understood by 'lay taxes' - but, as Bork wrote in The Tempting of America, you are not looking for what the framers intended by 'lay taxes': "[i]f someone found a letter from George Washington to Martha telling her that what he meant by the power to lay taxes was not what other people meant, that would not change our reading of the Constitution in the slightest."

That approach allows for a certain amount of ambiguity, and it allows for scriveners error. Because of the excreable state of legislative drafting in the modern era (not, I suspect, a coincidence: when courts de-emphasize text, there is no premium on careful drafting. Yet another good reason to adopt textualism), I suppose that I have to admit that one can imagine a situation where you genuinely have a statute that is totally self-contradictory - it has two clauses that can only really be read in such a way that they clearly set two different thresholds for the same benefit, and you have to pick one or the other. If there is nothing in the structure or the rest of the statute that suggests one or the other, if there are no comparable statutes to throw light on it, if it isn't an act that supercedes another act which might throw light on it, if there's no agency interpretation to defer to, then I suppose that a judge has to do something - she can't just remand it to Congress with instructions to fix it. So I suppose in those circumstances, I might give in and go back to the reports, or to Presidential signing statements, or even, God help us, to floor statements, because you have to use something. And, I suppose, if you really are down to a situation where you have nothing to use whatsoever, if there is nothing at all that sheds light on whether these litigants need to have $21,000 in income as Title III requires or $25,000 as Title V requires, I suppose in those circumstances, a Judge has to make a judgement call and pick a number. But, in all, I think that it's haltingly rare that you confront a statute where there really is nothing to establish the most reasonable reading except some hypothetical "intent of the legislature."

So that's my criterion. And it isn't simple or mechanistic, as formalist approaches are often painted, and it doesn't eliminate judicial discretion, as some over-zealous conservatives suggest (many of whom, in any event, don't actually want formalist judges at all, they want conservative judges, which I think is a swell secondary goal, but not the object of the exercise), but I think that it is the approach that causes the least tension with the system of government adopted by the Constitution and that is the most defensible in terms of democratic theory. And most importantly of all, for me, it is the approach that, IMO, best honors and gives genuine and coherent form and content to the oath to "support and defend the Constitution and laws of the United States."

Unknown said...


I'm afraid you've entirely obscured for me the distance between yours and Breyer's interpretive strategies. The only meaningful distinction you give is your preference for the meaning that would be attributed by any reasonable person at the time of the legislation over the meaning attributed to a legislator who might have had input into the bill, if not directly at leasat through meetings and debate. Why you'd choose the meaning of that reasonable person over the legislator's escapes me entirely.

reader_iam said...

***Breyer flipped out, turned bright red, and started accusing him of doing a right wing hit job. Just kidding.***

This gets my vote as the funniest quip I've read today in blogland. You almost got me.

Not as funny as it would have benn if Breyer had actually done any such thing, of course. But you can't have everything.

Simon said...

The difference between Justice Breyer's methodology and mine are clear. In truth, Justice Breyer has a result in mind that he seeks to support by citing fictive "legislative intent," the "purpose" of a given text, foreign precedent, and anything else that is readily to hand to achieve his desired result, including, even, text, when it suits him. On the other hand, my criterion is, what would a reasonable person reading the statute the day after if was passed - a reasonable member of Congress before voting for it, a reasonable President before signing it, a reasonable member of the public reading the bill. Perhaps the most clear way to put it is like this: I am concerned with the reader's understanding; the purposivist - Justice Breyer, if taken at face value - is concerned with the author's understanding.

Judging by your faculty profile, Peter, I think you protest a little too much, perhaps in service of a point. I don't generally worry too much about subtext. The difference between Breyer's approach and mine seems readily apparent to me. :)

Mortimer Brezny said...

There is a difference between the specific intent of particular legislators and the public purpose of a law.

A public purpose is not fiction. If a law is passed that creates a workers' compensation scheme for mineworkers with black lung, then the public purpose of the law is rather clear.

I would also note that committee reports and the laws themselves nowadays usually have a "public purpose" section. Congress is better at writing laws than many seem to think.

hdhouse said...

Tim said...
"in cases where the plain meaning of the law leads to an absurd result, the court should rule consistent with the law and, noting the absurdity of the ruling, publicly notify the Legislature through the opinion of this absurdity with a suggestion the Legislature fix the law (which is its job, not the courts'). Expecting courts to fix seemingly absurd results of the law is not only not the court's job, it is a loophole large enough to permit judges to legislate."

Please think about that response. What you have said it is preferential that the court rule strictly but badly and then post a stick-em to the decision to the decision that somehow alerts the legislature that this is bad law, attach the decision and stick-em to the leg of Harry Potter's owl and hope that the legislature rewrites the law so the court can thereup rule what?how? the next time the case comes around which it won't - meanwhile the current plaintiff/defendant are screwed by bad law and a court that is, at best, an enforcement arm and warning bouy for the legislature?

you are asking the court not to intrepret yet the executive and the legislative run on the gas of personal opinion. please then explain "signing statements" in the context of strict interpretation. then move on to advice and consent.

when you are done with that reconciliation, explain the court's role vis a vis legislation dealing with abortion, not mention specifically in the constitution yet prefectly legal at the time.

just curious if the right, who loves activism when it applies to their core issues and hates it when it when it appears to come from common sense, can ever reconcile the issues. you all know that this judicial activism pantload is a clarion call without, really, a shred of reason to it for most of the activist decisions the right so decries generally are from the right specifically.

Unknown said...


You say the meaning of the statute would be what a reasonable person reading the statute would . . . understand it to mean? That's fine. The real question that divides us is what that reasonable person could consider in reaching his conclusion about what those words mean. Breyer and I would say that whatever helps persuade him of the words' meaning(s) is a legitimate means of aiding that persuasion. You seem to imply that anything beyond those words themselves is an illegitimate means of doing so even if those pieces of evidence might be influential. I don't honestly understand why you would shut off access to those pieces of interpretive evidence beyond the words of the statute themsevles.

To suggest the real difference between you and Breyer is that he's results driven and you're not is really not to the point. You haven't established that simply by pointing out that he will reach beyond the text for interpretive tools. And I don't know what my faculty profile has to do with your point other than the fact it makes clear that lawyers are far more the sources of what courts say than is generally acknowledged. That point is directed at my students, to help make clear that their job is to persuade judges, not to be passive conduits of information to judges.

That last point is a particularly difficult one for my students who have been trained in civil law countries, where in fact the judges do their own investigations and questioning of witnesses. Our system is much more lawyer driven. But, again, I don't know what that has to do with my faculty profile. Perhaps you're just engaging in an ad hominem attack on my obviousl liberalism.

Scrutineer said...

Simon: As to absurd results, Justice Scalia has suggested (Green v. Bock Laundry Machine Co., IIRC) that when a statute might lead to absurd results, courts should reach back into the legislative record, including normally-proscribed materials such as reports and legislative history.

I think this misstates Scalia's position. He does write that it is

"... entirely appropriate to consult all public materials, including the background of Rule 609(a)(1) and the legislative history of its adoption, to verify that what seems to us an unthinkable disposition (civil defendants but not civil plaintiffs receive the benefit of weighing prejudice) was indeed unthought of, and thus to justify a departure from the ordinary meaning of the word 'defendant' in the Rule. For that purpose, however, it would suffice to observe that counsel have not provided, nor have we discovered, a shred of evidence that anyone has ever proposed or assumed such a bizarre disposition."

In other words: No reasonable person could think or has thought the statute means X. There is no evidence that anyone has understood the statute to mean X. E.g., the legislative record contains no suggestion that the statute means X. Therefore the court should not interpret the statute to mean X.

Scalia isn't "privileging" the legislative record over any other kind of public materials (e.g., newspapers, Air America transcripts, etc.) as a basis for interpreting statutory language.

His next paragraph makes this clear:

"The meaning of terms on the statute books ought to be determined, not on the basis of which meaning can be shown to have been understood by a larger handful of the Members of Congress; but rather on the basis of which meaning is (1) most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words of the statute (not to mention the citizens subject to it), and (2) most compatible with the surrounding body of law into which the provision must be integrated - a compatibility which, by a benign fiction, we assume Congress always has in mind. I would not permit any of the historical and legislative material discussed by the Court, or all of it combined, to lead me to a result different from the one that these factors suggest." [emph. added]

More from Scalia on legislative intent (including a reference to Green) here.

AlphaLiberal said...

Well, it's a good case in point how reality trumps simplistic bumper-sticker talking points.

Next it would be nice to see some discussion of how conservatives embrace judicial activitism when it suits their ends.