Justices Scalia, Brennan, and Rehnquist: constitutional perspectives

¶ … Supreme Court

The Justices of the Supreme Court differ in the way they interpret the law and apply it in individual cases. All are reading the same law, but they may have different philosophies regarding how to apply precedent and what sort of mindset to use in making a decision. Some of the differences and their sources can be discerned in the decisions and writings of Justices Scalia, Brennan, and Rehnquist

Scalia is associated with the idea of original intent, a theme expressed by conservative jurists for some time as the only valid approach to deciding constitutional issues. Essentially, this concept means that a case should be decided on the basis of what the writers of the Constitution intended when they wrote the various provisions or when legislators voted on the amendments added later. However, Scalia is actually more tied to the idea of textualism. Scalia addresses this idea in his book a Matter of Interpretation: Federal Courts and the Law, though he is not speaking in this book only about the Constitution, for he refers in his opening to "the current neglected state of the science of construing legal texts" (Scalia 3). He blames the structure of legal education in part, finding that the budding lawyer is first exposed to the common law and its application through writers like Oliver Wendell Holmes, calling for the application of reason to legal issues and basing much not on the law itself but on legal opinions written about the law. The body of legal opinions produced constantly represent the reason of legal minds and suggests ways that the law is being shaped by application. In this process, the courts ore often "mere expositors of generally accepted social practices" (Scalia 4), though Scalia says that from the earliest times custom and common law had diverged as soon as there was written law except in the doctrine of stare decisis, which means that precedents are to be followed.

What many see emerging, then, is a precedent-bound common-law system, and for Scalia, this system is in opposition to the overriding system of democracy. With the advent of that institution, law was made by the people through their representatives and had more power as a result. He supports the idea that laws are made by the legislature and that laws made by judicial interpretation are weak. While this might seem self-evident as stated, in practice it is not that simple, and Scalia has to address the complexities in his essay even if he may suggest ignoring them. As he says, he is not asking for common law to be removed from the equation because it has served well. He is thus not stating that precedent does not decide cases but is rather attempting something more subtle, a challenge to the idea behind the development of common law, the idea that the judge should seek to find the most desirable resolution from a social point-of-view. Instead, Scalia wants the mind set changed to one of respect for the text and for the legislative processes that shaped the text.

Constitutional interpretation is included in the process Scalia suggests, but he has a broader concept in mind and instead sees a need for close textual interpretation of the law at all stages of the legal process and in all courts. Scalia upholds the idea of reading the meaning of the text, and to this degree he also disagrees with the idea of original intent, noting that "intent" in any form would be a government of men and not a government of laws, and it is the law that governs in his view. In this essay, he espouses the doctrine of textualism as the only proper way to read the law, and he tries to answer the various objections that might be raised to this view and to the process itself. He argues with both sides in the normal constitutional debate, then, both those espousing original intent and those calling for a more liberal interpretation of the statutes. For Scalia, it is "the objective indication of the words" (Scalia 29) that decides issues and not the intent of the legislature, which also rules out giving much attention to legislative history, something he says has become more prevalent in recent years. He believes that legislative history often offers a skewed view of the given law so that the words of the history and the words of the law itself may conflict. He sees the need to come down on the side of the law in such a case, while those calling for original intent would demand more concern for what the lawmakers intended, as indicated in the aforementioned legislative history.

Scalia then turns to the specific issue of constitutional interpretation and again calls for textual interpretation, stating that the Constitution itself "tells us not to expect nit-picking detail, and to give words and phrases an expansive rather than narrow interpretation B- though not an interpretation that the language will not bear" (Scalia 37). This is where Scalia's view of textual interpretation leaves an opening, for an expansive reading is still a more liberal reading than strict construction would allow and insists on the need to apply common sense principles to the issues involved. The text might be given all the weight in the mind set with which the judge approaches the questions, but there is still a degree of interpretation and expansion here that suggests a much wider latitude than many would accept.

He believes, however, that there is a danger in too broad an interpretation and that people will begin seeking out judges who agree with their interpretation, seeking to shape the outcome by who decides it rather than on the basis of the law itself. This seems clear enough, but determining the degree of expansion to be allowed is difficult and is not really given full attention by Scalia in his tract. He primarily deplores trends he sweeps away from textual interpretation without being clear about how textual interpretation is to be conducted and judged. He calls for the text to be supreme, but he leaves enough wiggle room to raise questions about how this process will be carried out and how it will itself be judged.

This fact is pointed out by some of the other legal scholars who comment on the essay in this book. Gordon S. Wood first agrees with the view that many modern judges have strayed far from the proper path in the way they interpret the law and that many Federal judge are making the law rather than interpreting it, an undemocratic idea that has taken hold in some quarters. Wood also considers the history of interpretation and the way the process has developed from a common law application to an interpretation of laws made by a democratically elected body. However, he disagrees with Scalia on several counts. First, he asks whether the distinction Scalia draws between common-law interpretation and statutory interpretation is not too sharp a line, noting that practice is actually closer to a melding of the two so that in any statutory interpretation, there is an element of common-law interpretation as well.

In terms of constitutional interpretation, Wood raises the question of how the Constitution should be treated. He says that Scalia and others are treating it as a statute, a super-statute perhaps, but a statute just the same. Different Founding Fathers took different views of the issue. While Wood agrees with Scalia that judges today have an extraordinary degree of discretionary power, but Wood does not want to simply ignore the immense changes that have taken place in our legal and judicial culture over our history, changes he says cannot be easily reversed. Wood says that Scalia's "remedy of textualism in interpretation seems scarcely commensurate with the severity of the problem and may in fact be no solution at all" (Scalia 62-63). Wood states that he is not a lawyer, but he is also not that clear in his views. He seems to be accepting the social and legal changes taking place, and yet he sees them as a problem in need of a solution. He does not see textualism as a solution, yet his argument would not lead to original intent as a solution, either. It is thus not clear what he deems the problem to be or what sort of solution he would see as adequate.

Lawrence H. Tribe disagrees with Scalia fundamentally yet does agree on one thing, namely that original intent should not be pursued as a solution and that in reading a legal text, it is not the ideas of those who wrote the text that matter but the text itself. He also notes that Scalia is not always faithful to his own approach and cites instances of this, but he is willing to take Scalia at his word that he means for the text to be given all the attention, something Tribe agrees with as opposed to the expectations of the writers of the law. Tribe refers to what Ronald Dworkin says later in the book. Dworkin holds that everyone is an originalist now but that they are not seeking what the lawmakers expected but what they meant to say in their law, suggesting perhaps that they may not be writing laws as clearly as could be or that the vagaries of language often make it difficult to do so without some form of originalist mind set. Tribe points out that what both originalists and textual critics are doing is to try to determine what is intended over what is expected, meaning that a law could be written to say one thing but would have unintended consequences just the same. Where Tribe differs is in the fact that he does not believe it is possible to discover which provisions are which by a close reading of the text or by legislative history. Tribe also does not agree that the meaning can be obvious to any reader o that the meaning has to be fixed for all time by a given interpretation. Instead, he sees some provisions "as generative constitutional principles broader or deeper than their specific terms might at first suggest" (Scalia 71).

The issue then becomes how to decide which these are. Tribe agrees that this is a difficult task. He believes both Scalia and Dworkin err when they state "how various people in fact understood particular phrases a century or two ago" (Scalia 72). For Tribe, it is often necessary to look outside the Constitution itself for an answer, and though the written text has to be a beginning point, which of necessity also means that the meaning of the Constitution has to evolve in response to outside influence and changing circumstances. Tribe recognizes that neither he nor Scalia have a way of determining beforehand which provision in the Constitution have a set meaning and which can be interpreted according to changing circumstances.

Mary Ann Glendon states that she is a comparativist. In her analysis, she compares constitutional interpretation in different countries and over time, and she comes down more strongly on the side of common-law interpretation in part because it reflects a "legal culture widely shared by lawyers and judges with diverse personal backgrounds, economic view, and political sympathies" (Scalia 112). She says that those following Scalia's views will not be able to make use of certain techniques of interpretation that work well in other states and that could serve well here if strict textualism were not adopted.

Dworkin points out that there is a form of original intent in Scalia's view even if he thinks there is not, and that is semantic intention, or what the writer meant the words to mean. Clearly, Scalia is assuming that this is self-evident, but just as clearly, it is not or there would be no differences in interpretation over the last two centuries, as certainly there have been. It would appear that no matter what form of interpretation is adopted, at some point it is necessary to ask what someone meant by the law as written, whether based on legislative history, semantic interpretation, precedent, or some other specific source.

The degree of deference given to precedent also differs from place to place. In the United States, this often devolves into an argument over constitutional interpretation on the basis of evolution vs. original intent. United States Supreme Court Associate Justice William Brennan discusses the role of the courts and considers the issue of original intent as a philosophy of judicial interpretation and as referring to the most doctrinaire form of this view, which holds that today's Justices must discern precisely what the Framers thought about the issue being decided and follow that intention in resolving the case, which Brennan sees as "little more than arrogance cloaked as humility" (Breennan 4).

Brennan means that it is arrogant to assume we can determine the intentions of the Framers from our vantage point, and an examination of records from the time of the writing of the Constitution usually shows only that there were disagreements among the Framers. Brennan says that the doctrine of original intent is a form of "facile historicism" that is justified by proponents "as a depoliticization of the judiciary" (Brennan 5). However, Brennan notes that this form of interpretation is itself no more than a political decision.

Another argument proponents use is that this is a democratic nation and that "substantive value choices should by and large be left" to elected representatives (Brennan 5):

This view emphasizes not the transcendent historical authority of the framers but the predominant contemporary authority of the elected branches of government. Yet it has similar consequences for the nature of proper judicial interpretation. (Brennan 5)

Precedent obtains in general court decisions as judges look to what has been done in the past and to how the law has been interpreted and then apply the law on that basis. For all countries using this method, this gives the law a sense of continuity and finality that is itself a positive social policy.

Chief Justice Rehnquist was an advocate for the idea of original intent, though he often refined his argument on the issue far more carefully than many who hold that view.

In his book the Supreme Court, Rehnquist shows a propensity for analyzing the process and offers little ideological justification for any specific approach to decision making at all. His writings on specific cases show some of what he believed about the way cases should be decided, and often he seems caught between the requirements of both an application of some form of original intent and the need for respect for stare decisis at the same time. His actions with reference to probably the most contentious decision of our time, Roe v. Wade, shows the tension between the two ideas.

Many felt that at the first would be an opportunity, the more conservative Supreme Court under Rehnquist would overturn the Roe v. Wade decision, on the assumption that a conservative Court would want to do just that. Yet, the Court did not overturn Roe v. Wade at all, and indeed affirmed it. Only Justice Scalia wanted to reconsider and explicitly overrule Roe v. Wade when considering the issue in Webster. The Court as a whole, however, avoided doing this by deciding the case in as narrow a manner as possible. Chief Justice Rehnquist wrote the Webster decision and so was key in this process. This decision does not address the issue of abortion itself directly but rather confines itself to the issue of whether the state can compel its medical employees not to perform certain procedures and whether the state can refuse to pay for certain procedures. Rehnquist cited earlier cases that had rejected the claim that the unequal subsidization of childbirth and abortion was impermissible under Roe v. Wade. These cases had also held that the State could use public facilities and staff to encourage childbirth over abortion without being seen as placing a governmental obstacle in the path of a woman choosing to have an abortion. The State had also been held not to be required to commit any resources to facilitating abortions.