Term Paper: Justice Scalia Brennan and Rehnquist

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¶ … 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… [END OF PREVIEW]

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