Institutional Versus Linguistic Textualism

By Mike Dorf

As I observed in my FindLaw column and accompanying blog entry last week, Justice Scalia's allergy to legislative history appears to be stronger than the corresponding distaste felt by any of his colleagues.  Monday's decision in Kapruski v. Costa Crucierc, S.P.A. provides further evidence of distance between Justice Scalia and even the Court's other textualists--at least with respect to the felt need to make a point.  Kapruski unanimously holds that the question of whether a complaint that mis-names the defendant will count as timely under Federal Rule of Civil Procedure 15(c), should be resolved by asking whether the new defendant had notice of the suit during the period permitted for service under the statute of limitations (and the applicable tolling and service rules).  Justice Scalia joined Justice Sotomayor's opinion for the Court except for its reliance on the Notes of the Advisory Committee.

Here is the substance of Justice Scalia's objection:
The Advisory Committee’s insights into the proper interpretation of a Rule’s text are useful to the same extent as any scholarly commentary. But the Committee’s intentions have no effect on the Rule’s meaning.  Even assuming that we and the Congress that allowed the Rule to take effect read and agreed with those intentions, it is the text of the Rule that controls.
That needs a bit of explanation for those of you who aren't federal court litigators and forgot (or never learned) civil procedure.   Under the federal Rules Enabling Act, the original Rules of Civil Procedure and Amendments thereto come into effect as a result of three steps (more or less): 1) The Rules Advisory Committee--a body of lawyers, judges and legal academics--makes a study of the needs of the civil litigation system, soliciting input from the profession and the public, and then proposes new Rules or Amendments; 2) Such proposals then go to the Supreme Court, which usually (though not invariably), adopts new Rules or Amendments; but 3) At least six months before such new Rules or Amendments go into effect, the Supreme Court has to transmit them to Congress.  That way, if Congress doesn't like the change, it can pass legislation canceling it.

That procedure may seem odd, but it has long been understood as an acceptable variation on the traditional power of courts to adopt their own rules of civil procedure.  Thus, even though Justice Scalia dissented from the Supreme Court's 1989 decision in the Mistretta case on the ground that Congress cannot give a judicial administrative body the power to make what he regarded as substantive decisions about the criminal law, he has accepted that the Rules Advisory Committee process is permissible.  (Justice Scalia said so in his Mistretta dissent, accepting the authority of the Sibbach case.)

Now note what Justice Scalia is doing in his Kapruski concurrence: He is applying his brand of textualism to the Rules Advisory Committee process.  In his view, the Notes of the Rules Advisory Committee are analogous to the House or Senate Committee Report on a bill before enacted by Congress--a gloss that may or may not reflect the intent of the enactors, but, in any event, is not part of the enacted law, and not even relevant as any kind of authoritative source for resolving ambiguity in the law.

Yet even if one accepts Justice Scalia's critique of the use of legislative history in the construction of federal statutes, it is not obvious that the Notes of the Rules Advisory Committee are equally irrelevant to the construction of a Rule of Civil Procedure.   To begin, as I explained in my column, perhaps the best argument for textualism in statutory construction is to implement the principle that Congress cannot delegate power to a subset of itself.  Yet that principle has no bearing on rules promulgated by bodies wholly outside of Congress. Indeed, in other settings, Justice Scalia has been sensitive to this sort of difference.  Thus, he accepts the authority of the "Application Notes" that accompany the Sentencing Guidelines: Promulgated together with the Guidelines themselves and by the very same body (the Sentencing Commission), they can be treated as authoritative.

Now I suppose that one could develop an explanation for why the Rules Advisory Committee Notes should be treated as potentially misleading gloss analogous to Justice Scalia's view of legislative history, but what is interesting about his concurrence in Kapruski is that Justice Scalia doesn't seem to think that it is necessary to do so.  He appears to think that textualism is simply a product of what it means to read a text.  As he said fifteen years ago in Tome v. United States, when first espousing the view that the Rules Advisory Committee Notes should not be given any authoritative weight: "Like a judicial opinion and like a statute, the promulgated Rule says what it says, regardless of the intent of its drafters."  This is a linguistic account of textualism, not an institutional one (of the sort that public choice scholars and others have defended).

I don't think that this objective theory of language is necessarily a bad theory, but what makes it peculiar, in my view, is that Justice Scalia seems to think this is simply a matter of the nature of communication--even as intentionalists also think that their directly contrary view is simply a matter of the nature of communication.  Justice Scalia thinks that when Doe says "X" he means whatever his audience will reasonably understand "X" to mean, regardless of Doe's subjective intent, whereas Stanley Fish thinks that when Doe says "X" he means whatever Doe intends, regardless of what his audience will (reasonably or otherwise) understand.

To my mind, we have two different conceptions of the meaning of language at work here, one subjective and the other objective (or perhaps inter-subjective).  It is not especially useful for each side to insist that its conception of meaning is correct.  They would much more usefully argue over what consequences follow from adopting one or another conception of meaning in different contexts.  The institutional claims for and against textualism do that; the insistence on textualism as simply a matter of linguistics does not.