[EL] [Lawcourt-l] Justice Scalia's hocus pocus

Wed Jul 1 17:26:58 PDT 2015

Most of that was gravy. The plaintiffs' case was lost Roberts accepted the argument that the statute showed that Congress wanted state and federal exchanges to operate exactly the same way--i.e., with a three-legged stool.

Also, many times judges use some non-textual argument to avoid plain meaning (11th Amendment cases). Contrary to what plaintiffs suggested and the media reported, the plain language of the law supported the government's case much more than the plaintiffs' case. If you don't believe me, just read Scalia's amazingly unpersuasive dissent (every year federal exchanges were supposed to report 0 tax credits--right).

Best,

Eric

________________________________
From: Tom Burke <tburke at wellesley.edu>
Sent: Wednesday, July 1, 2015 8:17 PM
To: Eric J Segall
Cc: Finkelman, Paul; Paul Chen; lawcourt-l at legal.umass.edu; law-election at uci.edu
Subject: Re: [Lawcourt-l] Justice Scalia's hocus pocus

If "sensible textualism" merely means that you start with the words of a statute and try to resolve disputes using those words, then I suspect nearly all jurists are sensible textualists.  The trouble starts when the judge reaches the conclusion that staring at the statutory words more intently, or looking up their meanings in a dictionary, won't resolve the dispute appropriately.

When Roberts gets to that point in King v. Burwell, he goes well beyond merely reciting the other words in the statute to glean the full "statutory context".  He recounts the history of health care reform, including the disastrous effects of mandating community ratings without extending insurance coverage, and he describes the reforms enacted in Massachusetts that were the model for the ACA.  He considers the probable effects of removing subsidies, and cites a brief by economists on this point.   He uses phrases like "Congress meant" and "Congress believed."

Of course he grounds all this in the statutory language.  Purposivists do this as well--if you can't in some way square your interpretation with the language of a statute, you're in a lot of trouble no matter what interpretive technique you profess.  But Roberts notes that the ACA has some "inartful drafting" so that picking it apart using the canons of construction is likely to lead the judge astray.  His opinion does exactly what purposivists advocate.  It identifies the purposes of statute, the problem it meant to solve, and treats the statute as the product of "reasonable persons pursuing reasonable purposes reasonably" as Hart and Sacks put it.

You can call Roberts' approach textualism if you wish, but if you do I think you will find it hard to identify examples of non-textualism in statutory interpretation.

Tom Burke
Professor of Political Science
Wellesley College
Visiting Scholar, Institute of Governmental Studies
UC-Berkeley

On Wed, Jul 1, 2015 at 4:38 PM, Eric J Segall <esegall at gsu.edu<mailto:esegall at gsu.edu>> wrote:

Sorry if this is repetitive, but King is all about a sensible textualism. As Nick Bagley and I argued all over the place, the key to King is a sensible reading of the word "such," an argument Roberts strongly relied on and then a sensible readings of many other provisions of the law which showed clearly the purpose of the law. But, text came first, just not the text Adler and Cannon said over and over and over was the key to the case. It wasn't.

Best,

Eric

________________________________
From: lawcourt-l-bounces at legal.umass.edu<mailto:lawcourt-l-bounces at legal.umass.edu> <lawcourt-l-bounces at legal.umass.edu<mailto:lawcourt-l-bounces at legal.umass.edu>> on behalf of Tom Burke <tburke at wellesley.edu<mailto:tburke at wellesley.edu>>
Sent: Wednesday, July 1, 2015 7:30 PM
To: Finkelman, Paul
Cc: Paul Chen; lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.edu>; law-election at uci.edu<mailto:law-election at uci.edu>

Subject: Re: [Lawcourt-l] Justice Scalia's hocus pocus

On the question of Scalia's lasting influence on the judiciary, shouldn't we consider his advocacy of what he calls "textualism" in statutory interpretation?  Frank Cross, in his book The Theory and Practice of Statutory Interpretation, documents what looks like a dramatic decline in the use of legislative history among federal appellate judges beginning in the early 1990s, along with a big jump in references to textualism and to canons of interpretation.  Not sure how much of this is due to Scalia's influence, but he certainly has been the most prominent advocate for this shift.

That said, I found Justice Roberts' opinion in King v. Burwell fascinating because it represents such a sharp turn away from textualism.  The grab bag of techniques that textualists employ--citations to dictionaries, arguments using the canons of interpretation, and most of all, the insistence that one's own "literal" reading of the statute is the only reasonable one--is entirely missing from the opinion.  What Roberts does instead looks like purposivism, the strongest rival to textualism, in which the judge uses all kinds of materials, most importantly the historical context in which the statute was enacted, to glean the purpose of a statute.

Is King v. Burwell a turning point for statutory interpretation at the Supreme Court?  This is the question Abbe Gluck raises in an analysis I found fascinating<http://www.scotusblog.com/2015/06/symposium-congress-has-a-plan-and-the-court-can-understand-it-the-court-rises-to-the-challenge-of-statutory-complexity-in-king-v-burwell/#more-229600>.

By the way, I should note that Scalia, despite his advocacy of textualism, often himself uses non-textualist techniques to justify his statutory decisions.  As with originalism, he is much more consistent in his advocacy than in his jurisprudence.  (He acknowledges as much when he calls himself a "weak-hearted" originalist.) There's a wonderful law journal analysis of Scalia titled "Do What I Say, Not What I Do"!

Leaving the question: If a foolish consistency is the hobgoblin of small minds, as I think is true, then what is to be said about the advocacy/valorization of foolish consistency?

Tom Burke
Professor of Political Science
Wellesley College
Visiting Scholar, Institute of Governmental Studies
UC-Berkeley

On Wed, Jul 1, 2015 at 3:41 PM, Finkelman, Paul <Paul.Finkelman at albanylaw.edu<mailto:Paul.Finkelman at albanylaw.edu>> wrote:

yes but lots of people don't have very smart recent graduates of top ten law schools at their beck and call to do research for them

*************************************************
Paul Finkelman
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholar-in-Residence
National Constitution Center
Philadelphia, Pennsylvania

518-439-7296<tel:518-439-7296> (p)
518-605-0296<tel:518-605-0296> (c)

paul.finkelman at albanylaw.edu<mailto:paul.finkelman at albanylaw.edu>
www.paulfinkelman.com<http://www.paulfinkelman.com/>
*************************************************

________________________________
From: Paul Chen [Paul.Chen at wwu.edu<mailto:Paul.Chen at wwu.edu>]
Sent: Wednesday, July 01, 2015 6:32 PM
To: Finkelman, Paul; Schultz, David A.; lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.edu>; law-election at uci.edu<mailto:law-election at uci.edu>

Cc: Paul Chen
Subject: Re: [Lawcourt-l] Justice Scalia's hocus pocus

Over the years I've heard LOTS of people misquote Emerson.  Just thought I'd correct it, for the record, for once.   : )

From: "Finkelman, Paul" <Paul.Finkelman at albanylaw.edu<mailto:Paul.Finkelman at albanylaw.edu>>
Date: Wednesday, July 1, 2015 3:23 PM
To: Paul Chen <paul.chen at wwu.edu<mailto:paul.chen at wwu.edu>>, "Schultz, David A." <dschultz at hamline.edu<mailto:dschultz at hamline.edu>>, "lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.edu>" <lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.edu>>, "law-election at uci.edu<mailto:law-election at uci.edu>" <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: RE: [Lawcourt-l] Justice Scalia's hocus pocus

Scalia never gets his history correct; why would you think he should get his literary quotations correct?

*************************************************
Paul Finkelman
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholar-in-Residence
National Constitution Center
Philadelphia, Pennsylvania

518-439-7296<tel:518-439-7296> (p)
518-605-0296<tel:518-605-0296> (c)

paul.finkelman at albanylaw.edu<mailto:paul.finkelman at albanylaw.edu>
www.paulfinkelman.com<http://www.paulfinkelman.com/>
*************************************************

________________________________
From: lawcourt-l-bounces at legal.umass.edu<mailto:lawcourt-l-bounces at legal.umass.edu> [lawcourt-l-bounces at legal.umass.edu<mailto:lawcourt-l-bounces at legal.umass.edu>] on behalf of Paul Chen [Paul.Chen at wwu.edu<mailto:Paul.Chen at wwu.edu>]
Sent: Wednesday, July 01, 2015 6:15 PM
To: Schultz, David A.; lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.edu>; law-election at uci.edu<mailto:law-election at uci.edu>
Cc: Paul Chen
Subject: Re: [Lawcourt-l] Justice Scalia's hocus pocus

"Scalia loves to quote the phrase 'consistency is the hobgoblin of small minds.''"

A minor point, but the more complete statement by Emerson (though some online sources cite Thoreau) is as follows: "a FOOLISH consistency is the hobgoblin of small [or little or feeble] minds."  I think most readers would agree that including that modifier makes a difference.

From: "Schultz, David A." <dschultz at hamline.edu<mailto:dschultz at hamline.edu>>
Date: Tuesday, June 30, 2015 1:05 PM
To: "lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.edu>" <lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.edu>>, "law-election at uci.edu<mailto:law-election at uci.edu>" <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: [Lawcourt-l] Justice Scalia's hocus pocus

In the closing days of the 2015 Supreme Court term Justice Scalia’s dissents seemed to have reach a new level of bitterness.  He also seems to be mistaking name calling with reasoned dissent.  In King v Burwell it was “Jiggery-Pokery” or “pure applesauce” and in Glossip v. Gross Scalia summarizes his views of Bryer’s dissent as mere “gobbledygook."  I don’t know about you folks but I find this name calling to be unprofessional and a distraction from the merits of any argument he really wishes to make.

But I am even more perplexed than ever on the appeal of Scalia in terms of some thinking he is a great justice or legal scholar.  From a political science perspective it is clear that ideology more than principled argument frames and defines his opinions.  Moreover, his continued abrasive style stymies his influence on the bench.

Twenty years ago Chris Smith of Michigan State and I did the first book published examining Scalia’s jurisprudence.  The title was The Jurisprudential Vision of Justice Antonin Scalia (a book, to paraphrase, David Hume, which fell stillborn from the press).  I pulled the book off the shelf today and read our conclusion.  Let me quote a couple of paragraphs:

Our analysis in this book reveals many consistent themes in Justice Scalia's decision-making.  Scalia is supportive of property rights, corporate interests, the death penalty, and the loosening of the restrictions imposed by the exclusionary rule and Miranda v. Arizona (1966).  He is hostile to Roe v. Wade (1973), a constitutional right to privacy that encompasses a women's right to an abortion, and a variety of speech, press, religious, and associational rights recognized in the last fifty years as important to American democracy.  Scalia is also generally skeptical of legislative power, yet supportive of the majoritarian process over individual rights.  He has applied his preferred interpretive methodology, his understanding of the constitutional framers, and his views of separation of powers to redefine the basic structure of American politics and political institutions, including that of the federal judiciary.  With respect to the formal outcomes advocated by Scalia, he supports the kind of conservative agenda that one might have expected from a justice appointed to the high court by President Reagan. . .
Scalia espouses a conservatism that distinguishes him from Chief Justice Rehnquist and Justices O'Connor and Kennedy.  Unlike Rehnquist, O'Connor, and Kennedy, who seem content simply to advance their policy preferences through the advocacy of conservative case outcomes, Justice Scalia seeks to accomplish broader ends by rethinking the political philosophy and values that have defined American constitutional jurisprudence since the New Deal.  We have described Scalia's new thinking as the articulation of a post-Carolene Products. jurisprudence.

What amazes me is that 20 years later this description still is accurate.  What made me think also of this description is that in the Obergefell case he referred to long-standing traditions on marriage and how they should be respected as having constitutional validity.  Again 20 years ago we wrote how Scalia consistently invoked long-standing traditions as an argument to reject recognition of individual rights.  Twenty years later he is still doing it.  At least he is consistent. Scalia loves to quote the phrase “consistency is the hobgoblin of small minds.”  Maybe that tells us something.

--
David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
Department of Political Science
1536 Hewitt Ave
MS B 1805
St. Paul, Minnesota 55104
651.523.2858<tel:651.523.2858> (voice)
651.523.3170<tel:651.523.3170> (fax)
http://davidschultz.efoliomn.com/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/
Twitter:  @ProfDSchultz
My latest book:  Election Law and Democratic Theory, Ashgate Publishing
http://www.ashgate.com/isbn/9780754675433
FacultyRow SuperProfessor, 2012, 2013, 2014

_______________________________________________
Lawcourt-l mailing list
Lawcourt-l at legal.umass.edu<mailto:Lawcourt-l at legal.umass.edu>
https://list.umass.edu/mailman/listinfo/lawcourt-l

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20150702/798b5df4/attachment.html>