Justice Scalia Explains Himself

Reading between the lines.
Aug. 3 2012 11:57 PM

Words Mean Things

Antonin Scalia teams up with David Foster Wallace’s favorite lexicographer for a revealing look at how judges read laws.

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A Dictionary of Modern American Usage was made with a Democratic Spirit. Wallace says it “Wants Your Vote.” Without ever making claims for himself beyond a passion for the language and willingness to make judgments, Garner possesses a genius that originates in the awareness that he must constantly be making the case “with clear, logical reasoning that’s always informed by the larger consensual purposes SWE is meant to serve.” Making this possible is the persona Garner assumes, which Wallace eventually identifies as “objective, but with a little o, as in ‘disinterested,’ ‘reasonable.’ ” And what’s more, it’s never clear to Wallace whether Garner is “black or white, gay or straight, Democrat or Dittohead.”

In Reading Law, itself a kind of “pro-SWE argument,” Garner assumes a different persona that’s at once clearer and more opaque. Whereas Scalia describes himself as “a confessed law-and-order social conservative,” Garner now acknowledges that “he is pro-choice … and supports same-sex marriage; but he finds nothing in the text of the Constitution that mandates these policies.” And yet, when they write with one voice, the persona seems to attach itself to Garner’s more well-known co-author, who by reputation and by virtue of his office Couldn’t Care Less About Your Vote.

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Consider, just for instance, what Scalia and Garner together have to say about a New York case (Braschi v. Stahl Associates Co.) concerning a statute that prohibited a landlord, after a tenant died, from evicting a spouse or “some other member of the deceased tenant’s family” who’d been sharing the home:

Did this include a cohabitating nonrelative who had an emotional commitment to the deceased tenant? Yes, said the court, relying on secondary dictionary definitions in which family is defined figuratively, not literally. The dissent correctly criticized this expansive interpretation, confining family to its traditional sense of “objectively verifiable relationships based on blood, marriage, and adoption, as the State has historically done in estate succession laws, family court acts and similar legislation.”

Garner and Scalia don’t provide some relevant details here, though they may disagree with me, and perhaps each other, about their relevance. The “cohabitating nonrelatives” in question were two men, Miguel Braschi and Leslie Blanchard, who’d been living together from 1975 to 1986, when Blanchard died of AIDS. The men considered themselves relatives—indeed, spouses, as did their families—in a time before same-sex marriage was recognized in New York state (or any other state, for that matter).

Omitting these facts may have no bearing on a textualist reading of the statute. But euphemizing “gay domestic partner” or “life partner” or even “common-law husband” with the roundabout and clumsy “cohabitating nonrelative who had an emotional commitment” makes the authors seem squeamish as a Dittohead and, well, perhaps also a little embarrassed—no longer so proud of what textualism would have them say about interpreting statutes or the actual fairness of our democracy fairly read.

This democracy, according to Garner and Scalia, must work as it originally worked, which means we must continue to put certain rights of certain people up to popular vote. But it seems to me, a nonlawyer but something of a SNOOT, that in the case of Miguel Braschi, the fairest reading of family should include his partner of 11 years. Garner and Scalia may call me a crab, but I’m certain the word family has had all kinds of traditional meanings beyond (1a) “objectively verifiable relationships based on blood, marriage, and adoption.” (Certainly, no good law-and-order social conservative Catholic would deny the Holy Family was a family, uncertain paternity notwithstanding.) And while it’s true that much of the thoughtfulness about the utility of language we find in Garner’s dictionary can be found in Reading Law, I’m not convinced it’s the work of a democratic genius. Writing with Scalia, Garner no longer wants your vote.

As the book approaches the end, the authors double down on textualism’s unique ability to protect our democracy; their approach, they say, should work especially well in controversial situations. Yet it hasn’t always—remember what they had to say about Roe v. Wade. And in Reading Law, the authors conclude by lamenting the nontextualist adventurism that has resulted in a republic where “abortion and homosexual sodomy, which society so much disapproved that they were criminal under the laws of most states and had been for centuries, are now constitutionally protected.”

The reading of the Constitution that’s led us here seems mainly informed by the larger consensual purposes the document is meant to serve. This is where the Democratic Spirit has brought the nation. Dilige et quod vis fac. And yet, by Garner and Scalia’s account, the reading that has gotten us here is not simply crabbed. It’s worse than that. Because nontextualism has, for instance, made “abortion and homosexual sodomy … off-limits to the democratic process,” it’s also made the law less certain generally, which means we’re all less secure under its rule. This is what conservatives like Scalia always say. As for Garner, nowadays he might be a little pithier: If you interpret the Constitution to protect abortion and gay lovemaking, #yourenosnoot.

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Reading Law: The Interpretation of Legal Texts by Antonin Scalia and Bryan A. Garner. Thomson/West.

Scott Korb is the author of Life in Year One and Light Without Fire: The Making of America’s First Muslim College. He lives in New York City with his family.