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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Illustration by Sean Ford.

In June, when the Supreme Court upheld President Obama’s health care reform, Chief Justice John Roberts’ opinion declared that the individual mandate’s “minimum coverage provision” shall not be considered a penalty, as the law itself says, but rather a tax, “because it functions like a tax.” The court’s dissent, one joined by Justice Antonin Scalia, argued that this decision “suggests the existence of a creature never hitherto seen.” Let’s call that monstrous and mythical creature Penalty That Is Also Tax. Because the legislation contains the word “penalty” and because words mean what words mean, the dissent insists on a reading that sees dictionary definitions of “tax” and “penalty” as mutually exclusive. Given the scope and significance of the new law, this may be some indication of how significant certain dictionaries weirdly still are.

Now, exactly how—and how often—judges use the dictionary depends partly on their philosophies of interpretation. The dissent, for instance, relies on an approach known as “textualism,” the subject of a new book by Justice Scalia, Reading Law: The Interpretation of Legal Texts. This is a second he’s written with the lawyer Bryan A. Garner, most well known, until now, for his 1998 A Dictionary of Modern American Usage, the one dictionary I still keep in the house. Garner was so decent and sensitive and fair in that dictionary it’s been called a work of genius—called that by a genius, no less. (More on the genius in question later.) Erudite and comprehensive though the new book may be, I can’t really say the same for Reading Law.

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Through a series of 70 short essays, Reading Law details how authority—here, the rule of law—is established and ought to be maintained in our democracy. It takes particular aim at “crabbed” legal language, so called, in part, for the way it construes meaning unpredictably, say sideways or backward. Case in point: By deciding the Obamacare penalty was actually a tax, Roberts moved unpredictably. (Or, Roberts invoked the “Constitutional-Doubt Canon,” which Reading Law defines this way: “A statute should be interpreted in a way that avoids placing its constitutionality in doubt.”)

Scalia and Garner’s approach offers legal documents what they call a “fair reading,” or

the interpretation that would be given to a text by a reasonable reader, fully competent in the language, who seeks to understand what the text meant at its adoption, and who considers the purpose of the text but who derives purpose from the words actually used.

Textualism means to remedy what conservatives often call “judicial activism” or what Scalia and Garner see in the “adventurism” behind a ruling such as Roe v. Wade, where “the Supreme Court declared unconstitutional state statutes that in no way contradicted any specific provision of the Constitution.” A fair reading would have returned a different result—one worthy, they might say, of our democracy.

For Scalia and Garner, textualism is the great judicial defense of America’s system of lawmaking and checks and balances. It goes like this: Elected by voters and working together as a body, our legislators bring together lots of individual intentions, which means that drafting laws requires compromise. It’s absurd, then, to think there might be a singular “legislative intent” behind any statute. The same goes for readings of the “spirit of the law” instead of its “letter” or a belief in the “Living Constitution.” Absurdities all. When judges do anything but fairly read texts they turn the whole Constitutional system on its head.

The reason Bryan Garner’s name may sound familiar (and perhaps also the reason the new book exists at all) probably has less to do with his views on the Constitution than with an admiring 2001 review of his usage dictionary written by David Foster Wallace. That review does a number of wonderful things, but it’s most remembered for Wallace’s taking a moment “to establish and define the highly colloquial term SNOOT,” which is exactly what it sounds like, “a really extreme usage fanatic.” Garner is a SNOOT of the first class. So is Scalia. And so was Wallace. Garner, who’s very active on Twitter and considered himself a good friend of Wallace, started a hashtag last December in his memory: #yourenosnoot. His first memorial tweet:

Screengrab of tweet

SNOOTs, also known as prescriptivists, typically approach usage questions by insisting that, within reason, language shall follow particular rules (e.g., “Don’t Dangle Your Participles” or “Ain’t Ain’t A Word”). On the other side of our American conversation about usage are descriptivists, who insist that language may properly be used in any number of ways. Ever hear someone say ain’t? Yes? Ain’t is so a word. (So’s irregardless.)

Writing courses I teach all begin with a discussion of Wallace’s essay, “Tense Present,” and two of its key terms: Standard Written English and the Democratic Spirit, “one that combines rigor and humility, i.e., passionate conviction plus sedulous respect for the convictions of others.” I also highlight Wallace’s argument about the “very weird and complicated relationship between Authority and Democracy in what we as a culture have decided is English,” a relationship that makes instructing people in Standard Written English equally weird and complicated. Given both its utility and also the basic unfairness behind the fact that Standard Written English is “an instrument of political power and class division and racial discrimination and all manner of social inequity,” as Wallace says, how one makes a “pro-SWE argument” is always just as important as the points of usage one’s arguing for. (It’s OK to end a sentence with a preposition.) Wallace, for one, admits to having problems always being particularly well-reasoned or calm; at one point he declares a descriptivist’s claim “so stupid it practically drools.” In his Dictionary, though, Garner has been rigorous and humble in a way that makes you both trust and like him. Seeing this, Wallace discovers something more—namely, Garner’s genius.

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