Judicial Activism Invades the American Courts


A Matter of Interpretation: Federal Courts and the Law by Antonin Scalia

(Princeton University Press, 1997; 149 pages; $19.95)

Americans these days are awash in a sea of judges, lawyers, courts and cases. Unfortunately, most of their recent exposure to law has been restricted to courtroom dramas that have convinced most folks that trial courts are “where the action’s at.” Not true.

The real action is on appeal. Trial courts don’t make law, appellate courts do, namely federal appellate courts, and most especially, the highest federal appellate court in the land is the U.S. Supreme Court. There is no practical way most Americans can get so much as a glimpse at this complex world of appellate legal interpretation. But thanks to A Matter of Interpretation: Federal Courts and the Law, a slim volume published by Princeton University Press, thoughtful observers can listen in on a recent pointed discussion on judicial activism in which several of the most important thinkers in the field participated, led by Justice Antonin Scalia of the Supreme Court.

Justice Scalia has watched courts, particularly federal courts, deteriorate into what too often seems to be little more than arenas for nearly anonymous judges to introduce their agendas into society. This has been done not so much by exercise of raw judicial power but by their pretending merely “to interpret” legislation, prior cases, and even the Constitution, to satisfy what just happens to be the court’s political and social preferences. But, “if the courts are free to write the Constitution anew,” warns Justice Scalia, “they will, by God, write it in the way the majority wants. … This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protest against: the majority.”

It is Justice Scalia’s contention that, as matter of legal theory, the purveyor of modern judicial activism (to whatever school they adhere) are acting in a highly disingenuous manner, establishing social constructs which are of dubious value today and which are tearing at the foundations necessary for the sound rule of law for tomorrow. It is the great service of Justice Scalia’s essay, notwithstanding some weaknesses in his analysis, that, in a matter understandable by people educated in things other than law, he has shown that the kind and degree of judicial activism seen today in American courts is not a juridically defensible practice.

The strengths of this book are too numerous to list. I would, nevertheless, offer just two criticisms.

One of the thorniest problems encountered in trying to explain how one interprets legislation springs from the lightning speed and incredible complexity of the human cognitive process itself. For example, when I first read the facts in the Holy Trinity Church decision scorned by Justice Scalia, I instantly knew that the statute in question was not intended to cover ministers, and the Supreme Court was therefore correct to have read the statute the way it did. But in explaining how I knew that, I ended up sounding more and more like the limping majority opinion attacked by Justice Scalia, despite the fact that I am   much more comfortable with his interpretative rules and despite the fact that if those rules had been followed, the result in that case would have been different. In any event, none of the writers in this book on legal reasoning even allude to the prior vital question of human cognition and its role in the intellectual process of legal interpretation.

The second criticism I would raise springs from all of the authors’ complete lack of reference to the possibility that natural law analysis could serve as effective mechanism for modern judicial interpretation, Justice Scalia and, I believe, Mary Ann Glendon (head of the Holy See’s delegation to the recent population conference in Beijing) present arguments that seem to stop at the very doorstep of natural law reasoning, but they don’t enter the edifice. Why, I’m not sure. Surely both are familiar with, for example, the work of Long Fuller or, even better, Edwin Corwin’s classic essay on the higher law foundations of the Constitution, in whose elite company, Justics Scalia’s essay should be reckoned.

Glendon (Harvard) and Gordon Wood (Brown University) offer engrossing responses to Justice Scalia’s essay and indeed, with Glendon’s essay in particular, he could find little with which to disagree. Quite the opposite happened, however, when Laurence Tribe (Harvard) and Ronald Dworkin (NYU and Oxford), two of judicial activism’s leading defenders, take careful aim at the theory of Justice Scalia, who then defends himself in a brilliant counter-response.

On two points, though, I must agree with Professors Tribe and Dworkin: First Justice Scalia does not consistently follow his own canons of interpretation (although he is not as inconsistent as the professors would have readers thing, and even when Justice Scalia does deviate from his own rules, He still arrives at just results). Second, it is not necessary to be able to propose one’s own theory before being allowed to criticize someone else’s. But if that is true for Tribe (who expressly refrains from putting his own theory on the table) then it is also true for Justice Scalia. The fact, therefore, that Justice Scalia’s critics are able to spot some weaknesses in his position does not mean that his critiques of what’s going on in the federal courts are any less reliable or important.

In a recent address at the University of San Diego, Justice Scalia replied to one query by saying, “I know what I think, what do you think?” The question hung in the air for a few seconds and, perhaps for the first time, many there realized that the once-rarefied questions of legal interpretation were, on an almost daily basis, assuming more and more personal consequences for the average citizen. Those who read A Matter of Interpretation will not simply know what Justice Scalia thinks about judicial activism; they will be in a better position to assess what they think about it as well.

Edward Peters holds a law degree from the University of Missouri at Columbia

and a doctoral degree in canon law from The Catholic University of America.