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Breyer and Scalia: Are they really so far apart?
Breyer and Scalia Illustration

Julia Stronks

In an op-ed recently published in The Seattle Times, Whitworth Political Science Professor Julia Stronks, J.D., Ph.D., discusses textualism v. activism on the U.S. Supreme Court.

Over the course of the last year, questions about the judicial philosophies of the new U.S. Supreme Court justices have taken center stage in our discussions about jurisprudence. Our speculation has run high. Some people worried, while others hoped for secret "winks and nods" indicating a nominee's view on abortion or religious freedom.

Our discussions, however, have obscured the significance of a new book recently published 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. The debate between these two is important for us to understand as we continue to watch the unfolding of legal opinions over the coming years. Are Breyer and Scalia really so different? Do they represent opposite jurisprudential perspectives that set us up for conflict, or do they actually have a fair amount in common? Although much has been made of the difference between textualists and activists, a close study of Scalia and Breyer shows that their philosophies may have been more complementary than divisive over the years.

In 1997, Justice Antonin Scalia wrote an essay explaining why he thought textualism (faithfulness to a document's wording) was the best approach to the work of the Supreme Court. He pointed out that early in our history most of the work of Supreme Court judges involved explaining the meaning of phrases in the Constitution. However, today fewer than one in four Supreme Court cases involves this kind of constitutional analysis because Congress has passed so many laws. Today, the work of even the Supreme Court 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 like Scalia, who believes it is the legislator's job to write the law and the judge's job to interpret it. For example, when a statute imposes an extra penalty for the 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? This summer, Justice Stephen Breyer published a book that many argue takes Scalia to task. However, a close reading of Breyer's book demonstrates that this judge also favors a textualist approach when it is possible. Breyer's jurisprudence goes a step further, however, and explains what we should do when the text does not fully direct us.

Breyer argues for "active liberty of the ancients" referencing not the framers of our Constitution but the Greek 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.

Scalia writes primarily about the meaning of statutes; Breyer writes about both statutes and Constitutional interpretation. Each begins 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 concrete in the real world. For example, who said this: "Despite the narrowness of its terms…we have understood the Eleventh 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 Justice Scalia in a 1991 11th-Amendment majority opinion on judicial powers. Here, a textualist looks at history. And last spring, in Kelo v. New London, we saw active-liberty advocate Breyer agree with a controversial but nonetheless textual argument about the "natural" 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 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 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 that we have.

O'Connor has been called unsophisticated and non-academic 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 Supreme 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 prefers a balancing approach that allows for flexibility. She has been strategic in her work, and this is why she has had such a strong influence on the court. Maveety explains that by using swing voting and the writing of separate opinions, and by developing different coalitions, O'Connor has brought different groups on the court closer together. We saw this in abortion cases as 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 arguably undercut decades of First Amendment jurisprudence.

O'Connor's work cannot be the place where one starts in jurisprudence because when there is too much flexibility, lower courts and legislators have little to rely on in shaping their day-to-day policies and analysis. 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. Rather, we could instead 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.

An approach like this helps us to analyze Supreme Court decisions rather than simply react to them. Constitutional analysis is difficult, but good citizenship requires that we work to understand the opinions of the judiciary.

Stronks is the author of Supreme Court Watch, a regular column in The Spokesman-Review in which she analyzes legal questions facing the nation.

Stronks will present a session on the U.S. Supreme Court on Friday, June 16, during Whitworth's Alumni Family Weekend. All are welcome to attend.

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