Is Justice Scalia a Closet Purposivist?

In Part 2 of his critique of my FindLaw column on the Presidential Oath, Ed Whelan argues that I am mistaken in saying that self-proclaimed textualists like Justice Scalia cannot in good faith divine purposes in statutes. Whelan quotes Justice Scalia's essay/book A Matter of Interpretation, in which Justice Scalia says that judges engaged in statutory construction should look for a statute's "'objectified' intent," which, Whelan says---and I agree---is not different in substance from what I called a statute's "objective purpose." However, it's not entirely clear that Justice Scalia was saying judges should look for objective purpose; he may only have been saying that's what they in fact do seek, or what they traditionally have sought, when purporting to look for legislative intent. The relevant passage occurs at page 17 of Justice Scalia's essay/book, in the course of a critique of legislative intent. But I'm willing to grant Whelan this point and concede for argument's sake that Justice Scalia does say here that it's okay for judges to look for a statute's objective purpose.

Nonetheless, elsewhere Justice Scalia and other self-described textualists attack objective purpose. For example, here is what Justice Scalia says about the hunt for a legislative purpose on the very next page of his essay/book:
When you are told to decide, not on the basis of what the legislature said, but on the basis of what it meant, and are assured that there is no necessary connection between the two, your best shot at figuring out what the legislature meant is to ask yourself what a wise and intelligent person should have meant; and that will surely bring you to the conclusion that the law means what you think it ought to mean.
Now Whelan and others might say that in this passage Justice Scalia is only attacking a kind of purposivism that looks for a purpose that has "no necessary connection" to the text; by implication, he would be okay with deriving purpose from the statutory text itself. But that simply poses the question of how, if the text does not set forth its purpose expressly, a textualist judge is supposed to infer the purpose. The textualist cannot rely on evidence of subjective intent. Nor, apparently, can he ask "what a wise and intelligent person should have meant."

Aha, but perhaps Whelan or Justice Scalia will say it's permissible for the judge to attempt to discern what a wise and intelligent person would have meant. In this reading (which Whelan apparently endorses), Scalia only objects to very broad purposes that judges impose on statutes from the outside. Yet in some of his judicial decisions, Justice Scalia has criticized even the more limited "objectified intent" approach. Consider the 1998 case of Lewis v. United States. Concurring separately in a decision interpreting the federal Assimilative Crimes Act, Justice Scalia objected to the majority's approach, where the majority was in fact applying something very much like "objectified intent." Justice Scalia nonetheless fretted that the majority's quest would "simply transform the [statute] into a mirror that reflects the judge's assessment of whether assimilation of a particular state law would be good federal policy." (The majority in Lewis cited an earlier decision that had discerned the Act's "basic purpose" from, among other things, legislative history, but Justice Scalia himself thought the underlying precedent sound even without recourse to legislative history.)

Moreover, other self-described textualists go further. A classic in the textualist field is a short 1983 law review article by Judge Frank Easterbrook titled Statutes' Domains. Easterbrook there sets forth the standard public-choice argument against using a statute's purpose---even its objective purpose---to discern its application to concrete cases: statutes serve multiple, conflicting, purposes, and do not pursue any of their purposes at all costs; to single out any purpose is to ignore the fact that statutes are invariably bundles of compromises. This argument, with which Justice Scalia has not, to my knowledge, disagreed, leads Easterbrook to something like the "strict construction" that Justice Scalia disavows.

So, does Justice Scalia support looking for "objectified intent" or not? If yes, his position does not differ from that of purposivists. It would still differ from the position of subjective intentionalists, but there aren't that many of those folks around: In the responses to Scalia's essay contained in his book, for example, both Ronald Dworkin and Laurence Tribe say they agree with Scalia that courts should not look for subjective legislative intent. In his response essay, Justice Scalia takes issue with Dworkin and Tribe on a number of points, but they are in agreement in rejecting subjective intent. The rejection of subjective intent is not enough to mark textualism as a distinctive jurisprudential philosophy.

If Whelan is right that Justice Scalia can, consistent with his jurisprudential priors, discern objective statutory purposes, that would appear to be because Justice Scalia's textualism is not different in kind from the interpretive philosophy of many mainstream liberals. True, Justice Scalia thinks that the meaning of statutory (and constitutional) texts is frozen at the time of their enactment, but that view---originalism---is not a view we can plausibly attribute to texts as such. One could be a dynamic textualist or a static textualist.

Bottom Line: If credited as true, Whelan's defense of Justice Scalia's textualism (as practiced by Justice Scalia and, to a lesser extent, Chief Justice Roberts) shows that Justice Scalia does not hold a distinctive position on the primacy of enacted text. I hope Whelan is right about that. I fear he is wrong.

Posted by Mike Dorf