First Among Equals (29 page)
Not only that, but a natural self-defense mechanism on the part of the judiciary had set in. The critical fact laid out by Chief Justice Rehnquist was this: By passing the law, Congress had intended to overrule
Miranda
. The court of appeals had said just that. “Based on the statutory language, it is perfectly clear that Congress enacted [the law] with the express purpose of legislatively overruling
Miranda
and restoring voluntariness as the test for admitting confessions in federal court.” In the Supreme Court, Congress's anti-
Miranda
intent proved fatal.
Miranda
would survive.
Krauthammer summed up the anomaly in his postmortem: “Scalia is right that
Miranda
‘is a milestone of judicial overreaching.’ And yet
Miranda
, born illegitimate and living on illogic, has turned into one of the glories of American democracy.” Why? Because despite its judicial illegitimacy,
Miranda’
s existence says something powerful about the values of the country. “When people around the world go to the movies, they see a bad guy who has just murdered a nun, impaled a policeman and blown up a school, collared by Eastwood or Stallone or Tommy Lee Jones. What are the first words out of the good guy's mouth? ‘You have the right to remain silent.’ The viewer has to wonder what kind of political paradise America really is. People seeing this in Belgrade and Harare and Kuala Lumpur, places where the
innocent
get whacked and beaten and tortured at the whim of the authorities, can only be awestruck at a country that treats even its monsters with such delicacy.”
The Court no doubt knew this: Everyone—the president, Congress, the states, and law-enforcement professionals—would have promptly rallied around the warnings. Few if any elected officials, much less law-enforcement officials, would have said, “We are now directing that all
Miranda
warning cards be appropriately dispensed with for recycling.”
Of course, overruling
Miranda
would have been the best result. The appropriate roles of the three branches of government would have been preserved, yet the nation's commitment to safeguarding basic constitutional rights would have been vindicated. Under the most likely scenario, with
Miranda
overruled as a principle of constitutional law, representative institutions of government would have come to a particular view and practice as to what is right and fair in the administration of the criminal justice system. At the same time, if the police erred, then some other remedy would have been triggered rather than allowing dangerous felons like Ernesto Miranda to go free.
But the Court, dominated by the moderates and joined by the chief justice, was unwilling to change course. Stability and structural integrity, rather than fundamental principles, carried the day.
The Powers and Structure of
American Government
T
HE
P
OWER TO
M
AKE
L
AW
:
T
HE
S
TATUTORY
C
ONVERSATION
BETWEEN
C
OURT AND
C
ONGRESS
I
N EVERY CASE, THE
S
UPREME
C
OURT
is asked to interpret federal law, whether a statute passed by Congress or a provision in the Constitution. In most cases, the Court is asked to interpret an act of Congress. In a small number of these cases, there is a constitutional question for the Court. Consider the 1990 flag-burning case,
United States v. Eichman,
in which the defendant argued, successfully, that the new federal law against flag desecration violated his First Amendment speech rights. Others, as we will see in Chapter Thirteen, involve the question of whether Congress has the constitutional authority to pass the particular statute at issue. But the great bulk of the cases in which the Court is asked to interpret ah act of Congress do not raise a question of constitutional rights or power. Whether Casey Martin (a handicapped golfer) can play the PGA Tour while using a golf cart, a question decided by the Court in 2001, is an issue involving interpretation of the federal civil rights laws. These are not constitutional but pure statutory cases.
Obviously, the matter of how the Supreme Court and the federal courts generally go about interpreting a federal statute is of no small significance. Do courts simply refer to dictionaries, whether a
Webster's
or a
Black's Law Dictionary
or both, and let lexicographers decide the issue? Does Congress actually define the key words in a statute, say “toxic,” or “restraint of trade,” or “disability”? Or, in the post-modern age, can it be said with confidence that words, even words set forth in statutes, have meaning that can be discerned?
Much of modern literary scholarship is informed by the deconstructionist philosophy that meaning is elusive at best and illusory at worst. That approach, however popular in universities, is not the way of the law. In particular, the Supreme Court shows no such doubt as it seeks to interpret federal statutes. The philosophy that guides today's Court is emphatically not deconstructionist. The Court's members, across all ideological and philosophical divides, agree that words have meaning and that their meaning can be ascertained by careful, rigorous inquiry. In this respect, the justices are decidedly traditional in going about their work. Whatever inner doubts may plague them, they are not the slightest bit agnostic about meaning, nor do their opinions suggest any serious temptation to enter realms of philosophy. Years ago, as a graduate student at Brown University, I ventured into an epistemology class. The world-renowned professor Roderick Chisholm wrote on the board: “Mary had a little lamb.” He then spent the next fifty minutes plumbing the depths of that familiar sentence, noting ambiguities and nuances. That is not the epistemology the justices are interested in. Each is a lawyer of practical bent.
To say the Court agrees that words have discernible meanings does not, of course, mean that the Court is cheerfully unanimous as to what those meanings are. Far from it. Fault lines not only exist, they run deep, as we have already seen. The justices war, for example, over the appropriateness of using “legislative history” to help interpret a statute. Legislative history encompasses congressional committee reports and floor statements by senators and House members during legislative debate.
It is in this arena of the Court's daily work—statutory interpretation—that the appointment of Justice Antonin Scalia has been most dramatically felt, as we noted in Chapter Two. As we saw, Scalia believes that courts are strictly bound by the text and structure of the statute. He is an unabashed textualist. For him, repairing to background legislative materials is inappropriate. “It is simply incompatible with democratic government, or indeed, even with fair government,” he wrote in
A Matter of Interpretation,
“to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated…. It is the
law
that governs, not the intent of the lawgiver.” In Scalia's approach, virtually all questions about a law's meaning will yield up answers if the judge is sufficiently rigorous and careful in the analysis of its text and structure.
In contrast, Justice Stephen Breyer has argued for a broader approach to interpreting statutes, one that embraces generously all manner of interpretive tools. Disagreeing with Justice Scalia on legislative history, for example, Justice Breyer not only contends that its use is legitimate and important, but insists on taking broadly into account the purposes of Congress in passing the legislation in the first place. This Breyer would do much more freely than the more textually devoted Scalia.
The Court's centrists, Justice O'Connor and Kennedy, largely embrace Scalia's textualist approach in statutory interpretation, though neither is as averse as Scalia is to repairing, when the text and structure of the statute seem ambiguous, to legislative history. Because O'Connor and Kennedy largely hold the balance of power, Scalia's textualism often prevails.
This development marks a dramatic change in the Court's approach to interpreting statutes. The Burger Court, influenced by Justice Powell, was quite flexible in its reading of federal statutes. Powell, like so many lawyers of his generation, was willing to interpret a statute generously in order to achieve its “remedial purposes.” The idea was this: If Congress had passed a law aimed at a particular social evil, then the courts should be willing to interpret the statute liberally in order to achieve its goals.
Few judges take this approach anymore (although the Casey Martin case is an exception that proves the rule). Indeed, all nine justices now focus on text and structure and eschew broad rules of interpretation that do little to constrain judicial discretion.
The antagonism toward “loose” construction is born of basic concerns over judicial power. This concern is part of a broader philosophy that condemns judicial lawmaking as illegitimate. As seen from the textualist perspective, judges usurp power that belongs to the legislative branch when they interpret statutes broadly to reach situations Congress may not have envisioned. The textualist fear is that judges may accomplish by interpretation what one side in Congress was unable to achieve legislatively.
In the textualist view, the way to control judicial power is to remain focused on the words and structure of the statute. Thus, even repairing to legislative history may achieve antidemocratic results. Textualism is rooted in democratic theory. The idea is that, in passing statutes, the members in a representative body have before them only the proposed statute itself, as opposed to transcripts of committee hearings, floor debates, and the like. In addition, once the measure is passed, the people it affects cannot, in reason, be expected to go beyond the literal language and structure of the statute.
At times, the opposition to using legislative history can wreak divisions on the Court even when the justices reach the same bottom-line judgment. In June 2000, for example, the Court unanimously struck down an effort by Massachusetts to regulate in the foreign-policy arena. The Bay State legislature decided that its state agencies should not contract with companies that did business in Burma (now called Myanmar), and passed a law to that effect. The Court unanimously struck down the measure. Among other things, the Court said, the state effort was inconsistent with a later-passed congressional measure that gave discretion to the president in carrying out trade relations with the Southeast Asian pariah country. In his opinion for the Court in
Crosby v. National Foreign Trade Council
(2000), Justice Souter concluded: “Congress clearly intended the federal act to provide the President with flexible and effective authority over economic sanctions against Burma.” In support of this interpretation, Souter added commentary from various senators and representatives. From William Cohen (then senator from Maine and later secretary of defense during the Clinton administration) to Arizona Senator John McCain, the footnote made the simple point that “[s]tatements by the sponsors of the federal Act underscore the Act's clarity in providing the President with flexibility in implementing its Burma sanctions policy.”
This seemingly innocuous point distressed Justice Scalia. He was fully in agreement with the Court's holding, but he disdained Souter's use of members' commentary. The justices should, Scalia said, look to text and structure, not statements by individual members of the House or Senate. In staccato style, Justice Scalia, joined in his separate opinion by Justice Thomas, rattled off the attack that “it is perfectly obvious on the face of this statute that Congress, with the concurrence of the President, intended to provide Executive Branch flexibility.” His opinion dripped with sarcasm. He repeated the “it is obvious on the face of the statute” mantra no fewer than four times in the course of a three-page opinion. There was one additional “it is perfectly obvious from the record,” plus five instances of “I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) proposition that …”. Each of these repetitive phrases underscored Justice Scalia's point that the extensive use of legislative history, especially in footnotes, is wasteful, irrelevant, and ultimately harmful. “[E]ven if all of the Court's invocations of legislative history were not utterly irrelevant, I would still object to them, since … the statements of individual members of Congress … [are not] a reliable indication of what a majority of both Houses of Congress intended when they voted for the statute before us.” He noted that the legislative “debate” largely took place in an empty chamber; specifically, he pointed to a statement during the debate by Senator Mitch McConnell of Kentucky concerning what amendments to take up: “I do not see anyone on the Democratic side in the Chamber.” The vacant seats illustrated the textualist point. Half the house (at least) was empty when statements were being made by individual members. What counted, then, was the statute itself, its text and structure. The sea change in judicial interpretation of statutes is especially evident in issues involving federal administrative agencies, such as the Federal Communications Commission or the Environmental Protection Agency. The textualism of the modern Court, albeit modified and softened at times by Justice Breyer's approach, has replaced the culture of deference that previously characterized the Court's analysis of statutes administered by a federal agency.
This culture of deference to federal agencies was an enduring legacy of the New Deal Court. Its high-water mark came in the 1969 case of
Red Lion v. FCC
. The Federal Communications Commission, in regulating the broadcast community, had promulgated a benign-sounding policy known as the “fairness” doctrine. Viewing the airwaves as public property, the policy required television broadcasters, in expressing viewpoints on issues of public policy, to set forth competing opinions. That is, if a broadcaster took a position on an issue of growth in the community, then the broadcaster would be required to allow a competing viewpoint to be aired.
