Scalia Repudiates Judicial Activism

Scalia Repudiates Judicial ActivismU.S. Supreme Court Justice Antonin Scalia has co-written a book on legal interpretation with Bryan Garner, a liberal who is an expert on legal language. Although liberal, Garner is equally as concerned about the judicial interpretation of laws that seeks to look outside of the text, instead of looking to the text itself to determine the meaning (“textualism”). Beginning primarily in the 21st century, this phenomenon has led to judges putting their own biases and desired outcomes into their decisions.

However, it is not the role of the judiciary to effect policy; it is their role to interpret it. Too many judges have turned into a second wing of the legislature. Scalia writes, “Lawyers are trained to read statutes. They are not trained to be moral philosophers…why would anyone think that the judges are appropriate spokesmen for ‘the people?’” The Supreme Court is composed of nine unelected people who have lifetime tenure, unable to be voted out of office.

People may agree upon what a text means, but they may disagree about what is “right.” That is why judges should not attempt to make a decision that is right; those decisions belong to the elected legislature. Scalia looks to former Supreme Court Justice Benjamin Cardozo writing in 1933 for authority on how the Supreme Court has interpreted statutes, “We do not pause to consider whether a statute differently conceived and framed would yield results more consonant with fairness and reason. We take the statute as we find it.”

Scalia explains that when judges decide something that really should be settled in the legislative branch, such as inventing a new right in the Constitution, it cuts that issue off from further debate. It can no longer easily be decided at the ballot box. Whole areas of controversial topics such as abortion can no longer be debated in state legislatures or through state initiatives and referendums.

Most judges who do not like textualism look to “purposivism” instead to interpret the law. It is a vague principle that means trying to determine the intent of the provision. It can be easily manipulated. Those who want to look outside of the text claim that all laws are ambiguous and need interpretation. This is a gross exaggeration. Most laws are quite clear.

A majority of justices on the Supreme Court relied upon the nebulous “spirit of the law” concept in order to find a constitutional right to abortion. Scalia explained how tortured this interpretation was, “In Roe v. Wade, the Supreme Court declared unconstitutional state statutes that in no way contradicted any specific provision of the Constitution.”

Scalia cautions against looking to legislative intent. Prior to the 20th century, courts almost never looked to legislative history. It has become a real problem now, since legislators and special interests will insert speeches into the legislative record precisely to influence interpretation later. In addition, Frank Easterbrook, Chief Judge of the Seventh Circuit Court of Appeals, who wrote the foreword for the book, observed that those “words uttered on the floor are more apt to reflect Quixotic views of maverick legislators than the sense of the whole body…”

Scalia is also an advocate of using “originalism” in interpreting laws, which means looking at the historical context. By ignoring the historical context, new rights have been invented in the Constitution, while others have been twisted or ignored. Historically, abortion, sodomy and assisted suicide were considered crimes, so there is no historical support for creating a right for them in the Constitution. The Eighth Amendment was never intended to prohibit the death penalty; in the early days of this country all felonies were punished by the death penalty. The Second Amendment did not purport to confer a right to keep and bear arms, it implied a preexisting right that cannot be diminished to merely a right to join a militia. (District of Columbia v. Heller, 554 U.S. 570 (2008)).

It may come as a surprise to some that Scalia does not favor “strict constructionism,” which means interpreting texts literally. He explains that if it simply meant that one holds tight to the fair meaning of the law, it would be a sound doctrine. But its meaning has changed; in the 19th century it came to mean a “narrow, crabbed reading of a text.” For example, a law that punishes whoever “draws blood in the streets,” would be construed to punish a surgeon who was trying to save someone’s life by opening their vein.

Scalia dislikes the practice of ignoring statutes simply because they have fallen into disuse. This would give judges a dangerous amount of power to pick and choose which statutes to ignore.

Surprisingly, the book focuses very little on constitutional law until the end. The vast majority of it involves examining legal canons and how they have been interpreted, with an eye for how judges have interpreted them to usurp the role of the legislature.

Scalia has not accepted the approach taken in recent years by organizations like the Institute for Justice and the Goldwater Institute, which have ceded judicial activism as here to stay. Led by litigator Clint Bolick, those organizations are quietly obtaining victories for individual rights and freedom through new or unused interpretations of the law.

If you’ve ever wondered how judges are able to manipulate the law in order to come to a predetermined decision, this is the book to read. Scalia and Garner comprehensively go over virtually every way a judge can undermine the legislative branch and instead legislate themselves from the bench, with plenty of egregious examples to illustrate. Reading Law: The Interpretation of Legal Texts will give you the ammunition necessary to analyze and refute legal decisions that erode our Constitution, freedom and rights.

Rachel Alexander is the founder of the Intellectual Conservative and an attorney. Ms. Alexander is also a contributor to

SFPPR News & Analysis .