Monday, July 28, 2014

A Text So Clear It's Invisible

by Michael Dorf

My latest Verdict column discusses last week's dueling D.C. Circuit and 4th Circuit opinions respectively invalidating and affirming the authority of the IRS to extend refundable tax credits to people purchasing health insurance on federally-established, as opposed to state-established, exchanges. I note that the DC Circuit relies on textualist arguments, which leads me to explain what textualism is and its virtues, such as they are. I note that moderate textualism has been largely accepted but argue that the DC Circuit applies an extreme version of textualism. I contend in the column that what makes the DC Circuit version of textualism extreme is, among other things, the fact that it arrogates to the court the power to decide when language is sufficiently clear to foreclose the IRS interpretation of the statute.

Here I want to suggest that my column is perhaps too generous to Justice Scalia in accusing the DC Circuit of implementing a more extreme version of textualism than the version he has championed over the years. I won't go through his statutory construction opinions one by one in order to try to show that he too is really a textualist extremist. Instead, I want to focus on one particular oddity of Justice Scalia's constitutional jurisprudence. It is, I think, inadvertently revealing of how he thinks about text--and perhaps also says something more generally about textualism (in both statutory and constitutional cases).

Not long ago, I was very honored to accept an invitation to join the editorial team of one of the leading constitutional law casebooks, currently edited by Jesse Choper, Dick Fallon, Yale Kamisar, and Steve Shiffrin. For the next version (available for academic year 2015-16), Fred Schauer will take over Professor Shiffrin's parts of the book and I'll take over Professor Kamisar's, which include the materials on abortion. I have thus been going through various cases and I came across a tidbit to which I had not previously paid sufficiently close attention. It's a remarkable footnote that appears in Justice Scalia's dissent in Planned Parenthood v. Casey.

The majority opinion (which was a majority on this point, although a plurality in some other respects) explained why the Court thought that the Fourteenth Amendment's Due Process Clause could be understood to protect a right to abortion notwithstanding the argument that in 1868 (and for years later), there was no well-established tradition recognizing a right to abortion. The majority said that such a tradition is not a necessary condition for recognition of a constitutional right. If it were, the majority said, then decisions like Loving v. Virginia--which recognized a right to interracial marriage even though there was no traditional protection for interracial marriage--would be wrong. Justice Scalia responded (in his footnote 1) as follows:
The Court's suggestion . . . that adherence to tradition would require us to uphold laws against interracial marriage is entirely wrong. Any tradition in that case was contradicted by a text--an Equal Protection Clause that explicitly establishes racial equality as a constitutional value.
Whatever one thinks about the broader disagreement over abortion rights, that is a mind-blowing whopper of an error. Justice Scalia said in that footnote--as I have heard him say on other occasions--that the "text" of the Equal Protection Clause "explicitly establishes racial equality as a constitutional value."

Here is the text of Section 1 of the Fourteenth Amendment, including its Equal Protection Clause:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
One can say that the original purpose or intention or expectation of the people who drafted and ratified the Equal Protection Clause was that it would establish racial equality--although even then one would need a fairly elaborate account of why one should look to their general purposes, intentions, or expectations regarding "racial equality" rather than their largely contrary specific purposes, intentions, or expectations regarding interracial marriage in particular. But at least we can make sense of the so-called "semantic originalist" or "new originalist" argument that the general understanding prevails as against the concrete but unenacted intentions or expecations.

By contrast, the claim that the text of the Equal Protection Clause explicitly establishes racial equality is, as Justice Scalia himself would say, entirely wrong. The Equal Protection Clause says nothing whatsoever explicitly about race.

So why did Justice Scalia think and say otherwise--and not just in a casual conversation but in a published dissent in the U.S. Reports that was presumably vetted by law clerks with the capacity to read the Constitution and joined by three other Supreme Court Justices with that same capacity?

I honestly don't know the answer to that question but I'd bet that if his blatant error were pointed out to him, Justice Scalia would at first deny the obvious. If faced with a persistent objector, then perhaps Justice Scalia would grudgingly admit that the text does not explicitly say anything about race but that given the overall historical context, it should be construed to imply a principle of racial equality. And then, in a few days he would forget all about the conversation and go back to holding the false belief that the text of the Equal Protection Clause explicitly establishes racial equality.

If that is right--and the psychological literature on motivated cognition says that something like this probably would happen--then we have a pretty damning criticism of textualism more broadly. After all, here we have a Supreme Court Justice writing for himself and three others in a momentous case but making an obvious mistake about the content of an extremely well-known constitutional provision--finding clear text where there is no text. That suggests that the outcomes judges are inclined to reach on normative grounds routinely influence whether they find that the authoritative text they are construing is clear.

I am not saying that it's impossible to make a judgment about whether a text is clear without resort to normative considerations. But I do think that where the stakes are ideological and/or high--as in Halbig and Casey--a judge's normative druthers are likely to play a substantial role in whether he finds the controlling text to be clear.