Department SpotlightAs published in the Jan. 15, 2006, issue of The Seattle Times.
Breyer v. Scalia: Will Alito be an activist or a textualist?
Over the course of the past six months, questions about the judicial philosophies of now-Chief Justice John Roberts and Supreme Court nominees Harriet Miers and Samuel Alito have taken center stage in our discussions about jurisprudence.
Because we have known so little about these three, our speculation has run high. Some have worried; some have hoped for secret "winks and nods" indicating a nominee's view on abortion or religious freedom; and some have believed that the future of the court rests squarely on the shoulders of these unknowns.
The high-stakes scrutiny has, perhaps, obscured the significance of a 2005 book by Justice Stephen Breyer. In "Active Liberty: Interpreting Our Democratic Constitution," Breyer lays out an argument that many say stands in opposition to the "textualist" perspective of Justice Antonin Scalia.
With lines being drawn between "liberal" and "conservative" justices, the debate between these two jurists is important for us to understand as the Senate weighs Alito's nomination. Indeed, during the confirmation process, we should not be fixated on Alito's answers to policy questions related to abortion or religious freedom; rather, we should be focused on the process by which he approaches problems - his jurisprudential perspective.
Much has been made of the difference between textualists and activists. But a close study of Scalia and Breyer shows that their philosophies actually may have been more complementary over the years than divisive, and why facile political labels may foretell little.
In 1997, Scalia wrote an essay explaining why he thought textualism, or faithfulness to a document's wording, was the best approach to the work of the Supreme Court. He pointed out that for the first two centuries of jurisprudence in this country, most of the work of Supreme Court justices involved explaining the meaning of phrases in the Constitution.
However today, because Congress has passed so many laws, fewer than one in four Supreme Court cases involves this kind of constitutional analysis. The work of the Supreme Court these days relies less on the phrases of the Constitution and more on the meaning of words in statutes enacted by lawmakers.
In an age of legislation, says Scalia, the activist judge incorrectly asks, "What ought this law to mean?" This is outrageous to a textualist such as Scalia, who believes it is the legislator's job to write the law and it is the judge's job to interpret it.
For example, when a statute imposes extra penalty for use of a firearm in a crime, judges should never ask if the extra penalty is a good solution. Rather, a judge's job might be to determine what "used" means. Did a defendant "use" a firearm when he held it, unloaded, and showed it to the person he was holding up?
Most judges agree that the text is the place to start when interpreting what a law means. But, some judges argue that the text by itself is rarely sufficient for all the needs of statutory construction. What happens when the text is unclear?
With "Active Liberty," published last summer, many argued that Breyer was taking Scalia to task. However, a close reading of the book shows he, like Scalia, favors a textualist approach, when that is possible. Breyer's legal philosophy goes a step further, however, and explains what we should do when the text does not fully direct us.
Breyer argues for the "active liberty of the ancients" - referring not to the Framers of our Constitution but to the ancient Greeks and their discussions of self-rule centuries ago. Breyer argues that in self-government, courts are not just to exercise restraint but also to help articulate the people's expressions of liberty.
Breyer begins where Scalia begins, with the text. But, he says, if there are ambiguous phrases in a statute, a judge may also look to history, tradition and legislative intent to determine meaning.
Sometimes when a judge determines meaning, the judge must work to understand what principles the people or legislators were trying to articulate.
Breyer says the same approach can be taken in interpreting the Constitution itself, not just statutes. When the words are unclear, judges may look to the principles of liberty that support the document: The text and intent of the Constitution avoid concentration of too much power in few hands, they protect personal liberty, and they respect individuals equally. This was the democratic expression of the people who shaped the Constitution - and Breyer says this shapes what the text means.
Scalia writes primarily about the meaning of statutes; Breyer writes about both statutes and constitutional interpretation. While both begin with the text, when the text is unclear, Scalia is silent; when the text is unclear, Breyer turns to history and intent.
But these divisions are not really so unblurred in the real world. For example, who said this? "Despite the narrowness of its terms ... we have understood the 11th Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms."
Is this a textualist sticking to the words, or is this someone looking at history to give the words meaning?
This quote is actually from Scalia in a 1991, 11th Amendment majority opinion on judicial powers. Here, a textualist looks at history. And, last spring in the Kelo v. New London property-rights case, we saw active-liberty advocate Breyer agree with a controversial textual argument on the meaning of the phrase "public use" in the Fifth Amendment.
So, if Breyer and Scalia have more in common than we thought, where will Roberts and Alito, if confirmed, fit in?
Both Roberts and Alito give every indication of being textualists as they examine statutes. This makes them similar to Scalia.
However, on occasion, each has also demonstrated his interest in examining the consequences of decisions and in looking at the intent of legislators. In this sense, both are similar to Breyer.
Actually, they might even follow the approach of Justice Sandra Day O'Connor. Her work adds yet another layer of analysis when the text and the intent of the legislators do not fully answer the questions we have.
O'Connor has been called unsophisticated and nonacademic in her approach to jurisprudence; however, judicial process scholar Nancy Maveety of Tulane University suggests that many have missed O'Connor's very careful analytical strategy.
O'Connor's primary contribution to the court is her "accommodationism." Like Scalia and Breyer, O'Connor begins with the text, but she recognizes that in most situations supplementary work will be necessary. So, O'Connor often rejects "bright line" analysis - that is, developing a firm test, or a line in the sand.
Instead, O'Connor prefers a balancing approach that allows for more flexibility. She is very strategic in her work, which is why she has had such a strong influence on the court.
Maveety explains that by being a swing vote, writing separate opinions and developing various coalitions, O'Connor has brought different groups on the court closer together. We saw this in the series of abortion cases in which she developed an "undue burden" test that narrowed the holding of Roe v. Wade but nonetheless protected the right of privacy. We also saw it in religious-freedom cases as she championed a state's right to deny unemployment benefits to religious peyote users while rejecting Scalia's position that claimants deserved no special exemption under the First Amendment.
O'Connor's work cannot be the place where one starts in jurisprudence because when bright lines are rejected in favor of balancing, lower courts and legislators have little to rely on in shaping their day-to-day policies and analyses. But, O'Connor's approach is very helpful if we consider the work of Scalia and Breyer as a foundation.
We should not think of the court as bifurcated between textualist and active-liberty analysis. This is not how the justices characterize themselves. Rather, we could think of the jurisprudence of the court as a pyramid.
The foundation of the pyramid is Scalia's textualism. Start with what the text says. Then, if that doesn't lead to a clear answer, consider Breyer's approach emphasizing principles of liberty and the intent of legislators. Finally, if things are still unclear, move toward O'Connor's jurisprudential accommodationism, balancing different interests and considering the consequences of different decisions.
As we consider the Alito hearings, it is important that we resist the temptation to characterize him as a textualist versus an activist, or a conservative versus a liberal. If Alito has shown us that he understands the importance of a textualist approach but he also understands its limits, he will be a unifying voice on the court. On the other hand, if he has suggested that textualism gives all the answers necessary to either the interpretation of the Constitution or the interpretation of statutes, then we have a clue that ideology may trump legal analysis.
Copyright © 2005 The Seattle Times Company
Julia K. Stronks is an attorney and holds a Ph.D. in American government. She is a professor of Political Studies at Whitworth University, and author of the books Christian Teachers in Public Schools (Baker Books, 2000) and Law, Religion and Public Policy (Lexington, 2002).
Note: The opinions expressed in works written by Whitworth faculty and staff do not necessarily represent the views of Whitworth University or members of its community. They are, however, symbolic of Whitworth’s commitment as a Christian college to the free exchange of ideas.