Tuesday, December 05, 2017

Originalism and Textualism in Action: Not Constraining and Not Neutral (Part 2)

by Joseph Kimble

      Several readers made thoughtful comments on my original post. They deserve equally thoughtful responses, which I’ll try to provide below.

     The short references are to the two articles I cited in the original post, one in The Scribes Journal of Legal Writing and the other in the Wayne Law Review.

     Most of the comments centered on the Wayne article about overrulings by the Michigan Supreme Court. (Reminder: the 81 overrulings by the Republican majority were 96.3% ideologically conservative.) Few readers addressed the evidence about Justice Scalia’s opinions in the Scribes article: 6 empirical studies (pp. 30–35) and 11 scholarly examinations (p. 35, note 96) that seriously militate against any claim that his textualism was nonideological, politically neutral, objective — the simple product of rule-of-law judging. How much evidence does it take to confirm what (in Prof. Dorf’s words) is “blindingly obvious” to anyone familiar with the tilt of those opinions?

     As for the comments on the Wayne article, here they are in bold, each followed by my response.

     Some of the overruled tort cases must have been doing pure common-law tort law, and others overruled common-law discovery rules. So perhaps the overrulings were not done in the name of textualism.

     Here are some more numbers. Of the tort cases overruled by the Republican majority, 73% were entirely or primarily grounded in textual analysis (and most of those were entirely textual); another 9% involved some textual analysis. For the nontort civil cases, the numbers were even higher: 95% grounded in textual analysis.

     I don’t propose to cut and sort the civil cases any further, or to revisit the criminal cases (33 total, 32 of which favored the prosecution). I stand by my original assertion that the overrulings were done in the name of textualism. In fact, one of the Republican justices (now the chief justice) said so himself (Wayne, p. 353):
[T]he overrulings of precedent occurring during the past seven terms have overwhelmingly come in cases involving what the justices in the majority view as the misinterpretation of straightforward words and phrases in statutes and contracts . . . .
     That was in 2007. It didn’t change in the years that followed. Time after time, the Republican justices proclaimed that “plain language” compelled the (conservative) result, that previous majorities had misread the words, and that stare decisis had to give way.

     Overrulings are not necessarily good evidence of how neutral or constraining textualism is because they tend to be harder cases that divide courts along ideological lines.

     But isn’t that exactly the point? In the harder, high-profile, important cases, the Michigan Supreme Court acted in a relentlessly ideological way. Is that okay, even in the face of textualists’ claims that they are “neutral arbiters whose function is merely to interpret the laws”? (Wayne, p. 354.) Perhaps textualists have qualified that claim to say that they are not so neutral when it comes to overrulings or to cases with broad precedential importance. Is there such a disclaimer or caveat in the textualist literature? A prominent one?

     Besides the Michigan Supreme Court cases, you might check Geoffrey Stone’s study of the 20 most important United States Supreme Court cases from 2000 to 2013. Justice Scalia’s voting record? 100% conservative. And Stone found no principled reason for it. The conservative justices’ votes “were determined first and foremost by their own personal policy preferences.” (Scribes, pp. 34–35.)

     I chose the Michigan Supreme Court’s overrulings for the sample only because they form a fairly well-defined set. I’m confident that I could take any other set of the court’s decisions and produce similar results. I’m willing to bet, for instance, that a study of the cases in which the court granted leave would show a lopsided proportion of cases in which civil defendants lost and criminal defendants won. During those 15 long years, why was there such a tiny percentage of conservative precedents that warranted overruling for one reason or another? Why just 3 of 81?

     If Republican-appointed judges take a more constrained approach to reading the law than Democratic-appointed judges, then the results are not surprising. That’s what we should expect from non-ends-oriented judging.

     Even Justice Scalia (and his coauthor, Bryan Garner) reject the notion of strict constructionism. (See Reading Law: The Interpretation of Legal Texts 355–58 (2012).) Perhaps “constrained” is different from “strict,” but it doesn’t matter. What Scalia and Garner insist on is a fair reading of the text. (Id.) The argument must be, then, that a fair, balanced reading produces conservative results 96.3% of the time in important cases. Readers can judge for themselves whether that’s credible.

     The great majority of the cases that show up on supreme-court dockets involve vague or ambiguous language. The canons may conflict in these cases. But they are a small percentage of all the cases decided by state and federal judges — a huge number of which can be decided quite easily by textualist methods.

     Almost by definition, vague or ambiguous language presents an arguable call that can go either way. Certainly that’s true for ambiguity. And it’s certainly true for cases that make their way to the supreme courts. But the question remains: why, in the hands of textualists, does language that could go either way go conservative so invariably? Why are the numbers so extreme?

     As for the “huge” number of lower-court cases that can easily be decided by textualist methods, I think that textualists exaggerate the number of cases in which the meaning is clear or plain — even in lower courts. In the concluding section of the Wayne article (p. 376), I said that “the term plain language is becoming little more than a shibboleth.” Perhaps that’s less true in lower courts, but I suspect that in many of the cases in which courts invoke the term, the disputed language is not all that plain — or its application all that clear. Either that, or large numbers of lawyers are terribly undiscerning in what cases they decide to accept and pursue.

     It’s not clear whether I’m referring to the Michigan Supreme Court’s overturning its own well-established precedents or “overruling” lower courts.

     I provided those numbers on page 348. In 80% of the cases, the Supreme Court was overruling itself. The rest were court of appeals’ precedents that had stood for at least ten years.

     It’s not surprising that conservative judges would exercise their discretion (granting leave) to reverse erroneous results that are liberal rather than conservative.

     First, the expression “erroneous results” begs the question. As I tried to show through a close analysis of four overrulings, whether the cases overruled were “erroneous” is highly debatable.

     Second, if the Republican majority was deliberately ignoring erroneous conservative results, that in itself was an ideological move.

     But the larger point, once again, is that textualist judges profess to be neutral, rule-of-law judges, wherever that might take them. All they do is interpret, merely apply law to facts, and lo and behold, the interpretations just happen to produce conservative results — overwhelmingly.

     My kick, as I’ve said elsewhere, is not so much against judges’ leaning liberal or conservative. It would be better if they didn’t, but they do now and always have: judges are influenced by their backgrounds and worldviews. My kick is against not recognizing or admitting — despite the pile of evidence — these two truths: textualism is as squishy and subjective as any other theory of interpretation; and in cases that shape the law, it is put to ideological ends.