25 Rev. Litig. 501

Using All Available Information: Stephen G. Breyer, Active Liberty: Interpreting Democratic Constitution (Alfred A. Knopf, Pub., 2005)

Max Huffman

In this review essay, I consider Justice Breyer's recent book Active Liberty: Interpreting our Democratic Constitution. Much of the review is a comparison and contrast with Justice Scalia's 1997 work, A Matter of Interpretation: Federal Courts and the Law. I consider Justice Breyer's purposes and consequences approach to interpretation and its application to the process of constitutional and statutory interpretation. I then analyze whether it, or Justice Scalia's texualism and originalism - together, in Justice Breyer's words, literalism - tend to be more amenable to consistent and principled application. I conclude that the two philosophies are not so far apart as they seem. Both can be criticized, if one is so inclined, as placing too great of faith in an unelected federal judiciary. The most attractive aspect of Justice Breyer's book, a call for using all available information in the interpretive exercise, unfortunately is subordinated. It remains to be seen whether Justice Breyer's new publication will help courts in reaching a consistently applicable interpretive philosophy that promises majority acceptance.


   I. Introduction It is questionable whether a less fortunate title than Active Liberty: Interpreting Our Democratic Constitution could have been applied to Justice Breyer's rejoinder to Justice Scalia's 1997 volume on his interpretive philosophy. n1 Employed as it is in the context of the judicial process, "active liberty" calls to mind the ill defined concept of "judicial activism." Lambasting the federal judiciary with cries of judicial activism has come into vogue in recent years. n2 Justice Breyer likely would respond that in taking his title to task, the reviewer missed the point. "Active liberty," to Justice Breyer, has little to do with proactive judicial decision making. It is defined as the power and commensurate responsibility of citizens to engage in self government, and, for Justice Breyer's purposes, it defines the role of judges in interpreting texts constitutional or statutory as seeking to preserve and protect that democratic ideal, through a process of understanding texts' essential purposes and interpreting them to accomplish those purposes. n3 On the sound bite front, Justice Scalia, in A Matter of Interpretation: Federal Courts and the Law, offers "textualism," n4 while Justice Breyer risks further branding with "activism." Justice Scalia has one more seeming advantage: his forty five pages of text promises the elegance of simplicity. n5 Justice Breyer took 135 pages for his contrary proposal. Judge Stephen Trott of the Ninth Circuit used to say to his clerks that the analysis of a case should be reducible to a concise bench memorandum of prescribed maximum length. Implicitly, arguments not susceptible to such fore shortening were suspicious. n6    But even Judge Trott permitted more pages if the subject was so inherently important or complex that fewer would not suffice. That is the case with Justice Breyer's responsive salvo in the argument over statutory and constitutional interpretation, which this reviewer thinks appropriately recognizes the difficulty in and importance of the interpretive process. Justice Scalia's A Matter of Interpretation is not merely simple, it is simplistic, and improperly so. n7 In its simplicity it ignores the complexity of the process of interpreting language that often lacks a commonly understood, everyday meaning.    With specific regard to statutory language, Justice Breyer explores the interpretive problem that arises when    statutory language does not clearly answer the question of what the statute means or how it applies... . Perhaps [Congress] failed to use its own drafting expertise or failed to have committee hearings, writing legislation on the floor instead... . Perhaps no one in Congress thought about how the statute would apply in certain circumstances. Perhaps it is impossible to use language that foresees how a statute should apply in all relevant circumstances. n8 And constitutional interpretation is, if anything, a thornier problem. Justice Scalia himself noted: "The problem [of constitutional interpretation] ... is distinctive, not because special principles of interpretation apply, but because the usual principles are being applied to an unusual text." n9    Active Liberty, which "originally took the form of the Tanner Lectures on Human Values presented at Harvard University in 2004" n10 (Justice Scalia's A Matter of Interpretation was taken from the same series nine years earlier n11), considers the theme of active liberty "as falling within an interpretive tradition and consistent with the Constitution's history." n12 Justice Breyer also describes a tension between different judges' competing emphases in the process of statutory or constitutional interpretation. "Some judges emphasize the use of language, history, and tradition. Others emphasize purpose and consequence. These differences in emphasis matter and this book will explain why." n13    The two colleagues are not the first Members of the U.S. Supreme Court to articulate their interpretive philosophies outside of their work for the Court. n14 But of the active members of the Court, only Justices Breyer and Scalia have attempted such complete public expositions of their views on the subject. Perhaps the best accolades for Justice Scalia come from the pen of one of his most vociferous critics. Professor Laurence Tribe concedes the difficulty of penning a coherent theory of interpretation so difficult, in fact, that he declines to attempt to express his own theory. n15 No surprise, then, that, as one reviewer noted, Justice Breyer's is the first effort outside of judicial opinions to rebut Justice Scalia's and to propose an alternate approach to interpretation. n16 And these two colleagues have become de facto spokespersons for their respective wings Justice Breyer, the centrist, Justice Scalia, the conservative of the federal judiciary. n17 Professor Tribe observed the "contrasting thinking articulated by Justices Breyer and Scalia" on issues of statutory interpretation. n18 This is exemplified by the colleagues' occasional concurrence in each others' opinions or in the judgments reached, while advancing their own preferred approaches. n19    Active Liberty and A Matter of Interpretation in some manner permit apples to apples comparison. For example, both Justices have applied their respective approaches both to statutory and to constitutional interpretation, treating the two analyses as parts of a unified whole. n20 Both have also examined the host of available interpretive aids and announced a preference for some over others. As Justice Breyer writes, "All judges use similar basic tools to help them accomplish the task" of statutory or constitutional interpretation. n21 This review thus discusses Active Liberty in part by comparison and contrast to Justice Scalia's A Matter of Interpretation. It concludes that Justice Breyer's willingness to use all available information to inform interpretive problems is preferable to Justice Scalia's narrower approach. But Justice Breyer's statement of his philosophy fails to capitalize on its primary strengths and unfortunately lacks sufficient articulation of method.    Active Liberty is attractively packaged with a red cloth cover and glossy dust jacket. The latter might perhaps be criticized for its color scheme and design red border, white background, and blue text and stars, which emphasize political implications in preference to the jurisprudential ones (but is a plain black cover, reminiscent of a judge's robe, to be preferred?) and for the exceedingly large reproduction of Justice Breyer's portrait on the back cover. Who is Justice Breyer's target audience? The $ 21 price tag is steep for a reader of paperback bestsellers, but to this reviewer, who assigns $ 100 casebooks, it does not seem unreasonable. Footnotes would be far preferable to the endnotes the editors chose, which, organized as they are by confusing reference to blocks of page numbers, are particularly difficult to use. None of these criticisms relate in any way to the substance of the book or detract in any significant manner from the reader's enjoyment of it.    II. Finding "Purpose" The interpretive tradition that Justice Breyer embraces in Active Liberty "sees texts as driven by purposes," and requires judges then "to look to consequences, including contemporary conditions, social, industrial, and political, of the community to be affected." n22 The goal, then, is to ensure that the consequences of the interpretation accord with the purposes of the text.    Justice Breyer searches for purposes in constitutional interpretation primarily in the interplay between the concepts of so called "active liberty" which he sometimes refers to as "liberty of the ancients" and "modern liberty. " The former, broadly stated, is the people's collective right to democratic self government (this review sometimes employs the phrase "majoritarian rights "). The latter is a set of individual rights preserved by the Constitution. Justice Breyer sees the structure of the Constitution as representing primarily a balance between these sometimes consistent, sometimes opposed, concerns. The constitutional interpretive problem, then, apparently is to identify the prevailing concern and give it effect. And although Justice Breyer does not clearly identify how to resolve conflicts that do arise, his insistence on interpreting the text of the Constitution including amendments as a unified whole n23 seems to make clear that in preferring majoritarian rights or individual rights, judges must permit as little impingement on the other form of liberty as possible.    Active Liberty begins by setting up the interpretive problem and Justice Breyer's approach to dealing with it. The "Introduction" perhaps is inaptly titled: in reality it fits seamlessly into the body of the book. It lays out in skeletal form one of the more interesting themes of the book Justice Breyer's careful and readily understandable analysis of the history of the Federal Constitution and the balance that it strikes between citizens' "freedom from government coercion" and "freedom to participate in the government itself." n24 Each of these purposes, Active Liberty makes clear, is reflected in various writings of the Founders. And Justice Breyer also points out that the two purposes may support each other but also may be at loggerheads. n25 By comparison, Justice Scalia failed in A Matter of Interpretation to ground in the Constitution's text or history the source of his interpretive theory. n26 Although it convincingly states a case for respecting both principles of majoritarian rule and individual liberties, Active Liberty comes up short. It does not give the reader a means to know under what circumstances one principle should be preferred to the other. n27    The historical discussion is the most convincing, and in this reviewer's mind the most enjoyable, portion of the volume. Justice Breyer draws upon the works of historical scholars Jack Rakove, Gordon Wood, Bernard Bailyn and Alexander Meikeljohn; cites also to papers and books by Akhil Amar, Robert Williams, Edward Corwin and Max Farrand; and undertakes his own analysis of James Madison 's Federalists 10 and 39. n28 In this chapter he describes the sometimes confused original understanding of the precise form of government the Constitution created: "John Adams, for example, understood the Constitution as seeking to create an Aristotelian "mixed ' form of government." n29 The majority view, that the Constitution created a democratic government structure, carried the day, but even then, practical as well as philosophical considerations placed limits. "Democracy, of course, could not mean a Greek city state." n30 Instead of "the Athenian agora or a New England town meeting," "the people would have to delegate the day to day work of governance." n31 But the Founders also had learned some practical lessons that influenced their philosophical approach to democracy: "The reason" why "the Framers [did] not write ... a Constitution that contained" purer democratic structures "is that experience with many of these initial forms of democratic government had proved disappointing." n32 Instead of a pure democratic structure, the Constitution thus reflects "an effort to produce a government committed to democratic principle that would prove practically workable and that also, as a practical matter, would help protect individuals against oppression." n33    In Justice Breyer's conclusion about the purpose of the constitutional structure that ultimately was adopted we find his historical support for the thesis that constitutional interpretation should be undertaken with an eye to both the liberty to self govern and the individual liberty that the Constitution was crafted to protect. He writes of an "interpretive tradition" that "calls for judicial restraint," but nonetheless permits him to celebrate "decisions that ... helped to make "We the People' a phrase that finally includes those whom the Constitution originally and intentionally ignored." n34 Once again, though, how simultaneously to protect individual liberty and respect principles of democratic self government where those interests conflict is left to the reader to ponder.        III. "Living Constitution"? Active Liberty also broaches the topic of the "living Constitution" an issue debated vociferously perhaps since McCulloch v. Maryland, in which Chief Justice Marshall famously employed the phrase, "this is a Constitution we are expounding." n35 In Active Liberty Justice Breyer cites authority for the proposition that the phrase "We the people" which begins the Constitution's preamble should be understood to mean ""it is agreed, and with every passing moment it is re agreed, that the people of the United States shall be self governed.'" n36 He argues earlier that the Constitution is ""a continuing instrument of government'" and that for it to be applied to ""new subject matter ... with which the framers were not familiar,'" it should be construed by looking to purposes and consequences, not merely to text. n37    This discussion of continual constitutional renewal, however, feels disconnected with Justice Breyer's refrain that judges must be restrained, humble, not willful, and are not permitted to ""enforce whatever [they] think[] best.'" n38 Between its description of what its detractors might describe as an "activist" interpretive philosophy and its prescription of essential attributes of judges that will protect against such perceived evils, Active Liberty fails to offer a method for ascertaining "purpose" and "consequence" that does not entail substantial subjectivity. Justice Scalia previously argued that "there is no agreement, and no chance of agreement, upon what is to be the guiding principle of the evolution" of the Constitution to accommodate modern day realities. Justice Breyer argues that recognizing the purposes of the document will permit its natural evolution, checked primarily by a healthy dose of judicial self restraint. Justice Scalia surely would respond with a different understanding of "purpose."     Active Liberty relies on "judges" to "understand the human need to plan in reliance upon law, the need for predictability, the need for stability" and therefore to avoid "too radical, too frequent legal change." n39 This will be criticized as placing too much faith in an unelected judiciary. Justice Breyer responds in his final chapter, "A Serious Objection," that there is nothing inherently more objective about an originalist philosophy like Justice Scalia's. n40 He points out that subjectivity is inherent even in the determination to rely on text alone because there is no definitive evidence, either textual or historical, that the Founders intended the constitutional text to be final and definitive. n41    Justice Scalia, too, concedes that his originalist theory of constitutional interpretation permits subjectivity: "I do not suggest ... that originalists always agree upon their answer. There is plenty of room for disagreement as to what original meaning was ... ." n42 And while decrying notions of evolution of the Federal Constitution, Justice Scalia is quite ready to permit such evolution to occur under certain circumstances. One much observed example is Justice Scalia's reference to the "trajectory of the First Amendment" to determine whether realities that were never envisioned by the Founders when drafting the First Amendment might nonetheless be within the original meaning of its text. n43    IV. Active Liberty in Application Justice Breyer turns next to seven "Applications" of his philosophy. Those applications arise in the contexts of speech, federalism, privacy, affirmative action, statutory interpretation, and administrative law. n44 Certainly it must be said that Justice Breyer has not shied away in this volume from the most challenging issues facing courts, and the Supreme Court, in the modern era. Nor, considering the breadth of apparent application, does he concede any limitation on the application of looking to purposes and consequences to interpret texts. n45    It is here, though, that Justice Breyer's analysis is at its weakest. Active Liberty is quite long on application, but unfortunately short on method. In each example of application speech, federalism, privacy (literally, n46 rather than the hot button questions of substantive due process limitations on legislation), and affirmative action up until his discussions of statutory interpretation and administrative law, which are addressed below, Justice Breyer gives an example of a case, indicates what would be his preferred holding (usually what he argued in dissent), and justifies that result by reference to purposes and consequences.    Justice Breyer's analyses are fully persuasive as post hoc explanations. For example, in his discussion of free speech, Justice Breyer addresses campaign finance reform. He notes first that it is far too facile simply to utter the mantra, "speech is speech," and therefore to believe that all legislation having the effect of lessening communication must violate the First Amendment protection of the freedom of speech. Campaign finance reform legislation seeks to navigate a course between the Scylla of First Amendment rights and the Charybdis of protecting citizens' rights to self government, which, Justice Breyer persuasively argues (citing to facts such as would come before the Court in a classic Brandeis brief) are undermined by corporate donations. n47 Viewing the First Amendment protection of the "freedom of speech" as part of the entire constitutional structure, Justice Breyer is persuaded that appropriate campaign finance reform legislation can "democratize the influence that money can bring to bear upon the electoral process ... encouraging greater public participation, " which is the essence of his "active liberty" concern. n48 At the same time, he argues, this ultimately increases speech by fulfilling important First Amendment goals. This argument boils down to saying that, by breaking up the political speech oligopoly, competition in the marketplace of ideas will be enhanced. n49    None of the examples, though, show how a judge, or a lawyer, should approach the problem. They instead are post hoc rationalizations of results that Justice Breyer says are preferable. In the introduction, Justice Breyer even warns us of this failing: "To illustrate a theme is not to present a general theory of constitutional interpretation." n50 The unfortunate result, however, is that the philosophy Justice Breyer advances has an "I know it when I see it" n51 quality what one reviewer has called "an ad hoc attempt at political compromise as much as the application of legal principles" that recently has frustrated at least one federal judge. n52 And to the extent that Justice Scalia has provided a method, in Active Liberty Justice Breyer does not propose a workable alternative.    V. Searching for Agreement in Philosophies Turning the page, the reader arrives at Justice Breyer's application in Active Liberty of his philosophy to the process of statutory interpretation. n53 Initially, there is something fundamentally different about how Justice Breyer conceives of this task in the overall scheme of his analysis from the treatment Justice Scalia gave the subject in A Matter of Interpretation. Rather than treat statutory interpretation as a task parallel in nature to constitutional interpretation, Justice Breyer treats statutory interpretation as an "application" one more way in which his purposes and consequences approach to constitutional decision making plays out in practice. n54 On further analysis, the difference appears to be one of organization rather than substance.     Both this chapter on statutory interpretation and the next chapter, dealing with administrative law, n55 are unique in Active Liberty: they are the only two in which Justice Breyer attempts seriously to articulate a methodological approach. The method Justice Breyer proposes is to envision a hypothetical "reasonable member of Congress." n56 (Is it only this reviewer who takes delight in Justice Breyer's calling the "reasonable member of Congress" construct a "fiction"?). This reviewer, who tries to instill in students the intuition for reducing to rationality abstracted legal doctrine, finds the "reasonable Congressperson" approach particularly attractive. Does Justice Scalia as well? In his articulation of "textualist" idealogy, Justice Scalia prescribes construing a statute "reasonably, to contain all that it fairly means." n57 Justice Scalia later describes his textualist ideology as a search for what statutory text "would reasonably be understood to mean." n58 For his part, Justice Breyer is not seeking statutory purpose in a vacuum. He believes also in starting with "the statute's language." n59 To start, the colleagues' approaches are not so different.    The detente that appears at first blush ends before the second. In Active Liberty Justice Breyer observes that statutory construction is not an interesting topic if a reasonable interpretation of the statutory language produces a definitive result. n60 He thus articulates the importance of using all available information "the statute's language, its structure, and its history in an effort to determine the statute's purpose." n61 The goal is to ascertain the text's meaning. Thus, "nothing that is logically relevant should be excluded." n62 Isolated from the contention surrounding interpretive philosophy, the merits of Justice Breyer's approach tried and true in other areas of the law n63 are almost too obvious to articulate. Indeed, the only way that employing all available resources in the interpretive process might be problematic is if misleading information becomes part of the mix. n64    To watchers of the modern Supreme Court, as well as to interested lay persons, Justice Scalia's professions of a "textualist" approach to statutory interpretation are well known and might be considered quite influential. n65 Under this philosophy, Justice Scalia would stick to the language of the Constitution or a statute and let the chips fall where they may. Thus, as the lone dissenting voice in Koons Buick Pontiac GMC, Inc. v. Nigh, Justice Scalia argued, ""If Congress enacted into law something different than what it intended, then it should amend the statute to conform to its intent. It is beyond our province to rescue Congress from its drafting errors ... .'" n66    In Koons, a Truth in Lending Act (TILA) case in which the Court held that Congress did not amend the statute to remove liability limitations that had been contained in it since its 1968 enactment, Justice Scalia quoted the opinion in Lamie v. United States Trustee, n67 a bankruptcy case, for the proposition that the Court should not correct Congress's errors. n68 In so doing, he exposed his approach to one of the most serious possible criticisms. Anecdotally, unbending textualist philosophy appears to be employed selectively in cases in which a judge is less concerned about reaching a correct outcome and is commensurately more willing, in the name of strict adherence to principle, to require Congress to revisit a problem statute. The philosophy of leaving to the legislative branch responsibility for correcting obvious drafting errors or oversights has been applied readily enough in the contexts of consumer law statutes like TILA. In other areas such as criminal law ("uses a firearm" in relation to a drug crime does not include trading a gun for drugs) n69 Justice Scalia has been all too ready to interpret statutory language contrary to the plain textualist meaning in order to reach the result that he believes Congress obviously intended, although it would be a simple enough matter once again to have required Congress to amend the statute, using more precise language to account for a situation it did not envision when writing the text originally. n70     The "uses a gun" example suffers the same failing that this reviewer noted regarding Justice Breyer's application of his purposes and consequences approach. Why is it so clear that "uses a gun" or "do you use a cane" does not mean barter or decoration? n71 Justice Scalia simply knows it when he sees it. n72    The Koons majority, though, reversed the Fourth Circuit's holding. Koons was a case in which the addition of a clause to a previously clear statutory sub paragraph rendered the sub paragraph seemingly unclear on its face. But three primary reasons supported reversal: (1) there was a plain language reading of the statute that supported reversal, relying on the fact that the word "sub paragraph" in statutory text is a term of art; (2) throughout the voluminous history of amendments to TILA, Congress never made any textual change that would support the reading the Fourth Circuit had adopted, despite regularly having amended the provision at issue; and (3) the change the Fourth Circuit held had occurred could not possibly be considered rational legislative policy. n73 The strongest argument the Fourth Circuit panel, and Justice Scalia in dissent, could muster was that it would be inappropriate to rescue Congress from its drafting error. For support Justice Scalia cited to Lamie. n74 The failure to consider available evidence of the statute's meaning is all the more troubling in Koons because it did not require resort to "floor debates and (especially) committee reports," the process Justice Scalia derides. n75 Evidence was available in Koons of the history of TILA as enacted into law by Congress and signed by the President. n76    The Koons example demonstrates the benefits of an approach to which Justice Breyer subscribes in Active Liberty of considering all information that bears on the interpretive question, rather than merely some narrow subset of information. The criticism that Justice Scalia makes of this approach, that misleading information may find its way into the mix, n77 is overstated. First, judges would not be worth their salaries if they could not draw distinctions between relevant information and red herrings. Second, in A Matter of Interpretation Justice Scalia does not give empirical evidence supporting his concern. He provides no example of legislative history that, when fully considered, would contravene, rather than merely aid in interpreting, statutory text. Instead, he says the opposite. He finds next to no examples in which he would change his vote had he relied on legislative history. n78 Finally, Justice Scalia fails in his dismissal of the topic to distinguish between different sorts of available information. For example, a history of prior enactments of the same statute surely are deserving of more weight than statements to an empty chamber in floor debates. Indeed, ripe as Justice Scalia's analysis is for criticism, in this reviewer's mind a primary drawback of Active Liberty is its complete failure to articulate the method of "using all available information" in the context of statutory interpretation.    A more optimistic understanding of the vagaries of seemingly selective application of textualist philosophy is that unbending adherence most often occurs in dissent, as seen in Koons. Why, one might ask, would an intellectual giant of Justice Scalia's stature simply fail to recognize that were his arguments to command a majority, the result would be waste and expense? A Congress currently overwhelmed with the Iraq War, Hurricane Katrina, and judicial appointments (of course, only the first and third of which were relevant when Koons was decided, but something akin to the second was predictable) would be forced to scurry to correct a seeming glitch in the text of TILA that confused next to nobody. If the answer is that formalism in interpretation is permitted to trump reason, it is a cause for serious concern. The answer is much easier to accept if it is only that rigid textualist philosophy is reserved for expression in dissents (as in Koons), concurrences, or extra judicial writings and speeches. Often this is the case. Justice Scalia is famous for his concurrences in which he rejects the narrow portion of a majority opinion in which legislative history is discussed. n79 And instances are rare this reviewer knows of none in which an express refusal to consider all available information in a case of true ambiguity has commanded a majority of the Supreme Court.    In any event, as Justice Scalia himself observed: "Frankly, [refusing to use legislative history] has made very little difference" in the results he has reached. n80 If that is true (although it is questionable whether an "honest textualist" n81 would know, because a review of the legislative history must be thought to taint a pure exposition of statutory language), Justice Scalia's method is simply another approach to the same result.    Of course, reasoning by anecdote necessarily is inadequate. Both Justice Breyer in Active Liberty and Justice Scalia in A Matter of Interpretation fall into that trap (and this reviewer now has joined them). It always will be possible to point to egregious examples of injustice attendant on following one interpretive philosophy or the other, or to drum up circumstances in which one judge or another apparently has deviated from a previously stated approach. Unfortunately, a principled comparison of differing interpretive philosophies would be more difficult even than crafting one's own philosophy, for deciding whether textualism or purposes and consequences produces better decision results would require: (1) determining what are the ideal decision results, and (2) testing both philosophies to determine which reaches them more often. That comparison is beyond the scope of this review.    But it does appear that there is some common ground between Justice Breyer's purpose centered approach and Justice Scalia's textualist approach at least in the arena of statutory interpretation. It would indeed be a worthy outcome of the recent publication of Active Liberty if it permitted a synthesis of what are seemingly irreconcilable theories of statutory interpretation. A synthesis would require some bending by both sides, but neither Active Liberty nor A Matter of Interpretation give the impression that there is not room for movement. For example, Justice Breyer is mainly concerned with what he sees as the consequences of true literalism. It is incorrect, he says, "to answer a lost driver's request for directions, "Where am I?' with the words "In a car.'" n82 On that point I am confident Justice Scalia would agree. n83 Just as he reads "uses a gun" to mean something other than bartering with it, he believes the sentence "I put the saddle on the bay" has a clear meaning, n84 which of course it does, and Justice Breyer would, in turn, agree. The colleagues agree that the context in which words are used matters in their interpretation. n85    Justice Breyer's search for purpose in a statute also should not be as controversial as it might seem. Justice Scalia has all but admitted a search for purpose as well. In his interpretive exercise, he seeks the "import" of the statute which depends on its "purpose." n86 Justice Scalia has admitted also a willingness to correct obvious errors termed "scriveners' errors" in statutory text. n87 And Justice Scalia is quick to point out that his brand of textualism looks for natural meaning in the text. Is the real challenge in producing a synthesis only in finding common ground in the appropriate breadth of a search for statutory purpose?    This is the point at which, if each approach can be bent a small amount, a unified rule might emerge. Justice Breyer's willingness to use all available information, which this review has praised, could be limited such that judges' consideration of sources beyond the text is undertaken with a jaundiced eye especially to the extent that a statement in legislative history reflects one or several legislators' views, rather than the views of the entire legislative body. n88 But Justice Scalia's textualist philosophy could bend too. If an adherent recognizes that the search for meaning in words requires an understanding of the context in which they are used, resorting to truly reliable external sources should not be prohibited. For example, although "I put the saddle on the bay" n89 does not require any help for the reader to understand its meaning, "I saw the bay" does. If textualist philosophy will permit judges to look no further, they are hamstrung.    And a decision about how far outside the text to look can be left to the wisdom and experience of the interpreting judge. For this synthesis to work, it will require faith in the co equal branches of government to fulfill their responsibilities to appoint and confirm the sort of careful judges that can be trusted to execute their interpretive duties in a principled manner.    VI. What is Activism? Because activism was this review's starting point, the final question is whether Justice Breyer's interpretive approach or the textualist approach of Justice Scalia is more deserving of the now pejorative label "activist." That otherwise meaningless term recently has been defined in connection with the spate of Supreme Court nominations to replace retiring Justice Sandra Day O'Connor and the late Chief Justice William Rehnquist: "Judicial activism," according to the Senate Judiciary Committee's questionnaire to White House Counsel Harriet Miers, nominated to replace Justice O'Connor, is defined as including the "tendency by the judiciary toward problem solution rather than grievance resolution" and the "tendency by the judiciary to impose itself upon other institutions in the manner of an administrator with continuing oversight responsibilities." n90    Justice Breyer's approach risks a court overstepping its bounds and ascribing to the legislature an intent that should not properly be ascribed. Whether and how often that occurs is a matter for empirical research, but this reviewer proposes it is a rare occurrence. The purposes and consequences approach in Active Liberty must not be confused with an attempt to shoulder the role of a co equal branch of government. Active Liberty is loaded with indicators that Justice Breyer considers the judge's role to be a deferential one. n91 Statistics on votes to overturn congressional legislation bear this out. n92    By contrast, Justice Scalia, and those who subscribe to his proffered methodology a set that Justice Breyer "hopes" is "fairly small in number" n93 at least in cases such as Koons, unapologetically do violence to the result the legislature sought to produce in the name of remaining faithful to its text. Justice Scalia "rejects intent of the legislature as the proper criterion of the law." n94 His confessed goal? To influence Congress's resort to floor debates and committee reports to clarify the meaning of the enacted statutory text n95 in other words, to teach a co equal branch of government how to go about its business. A Matter of Interpretation is rife with disdain for the modern legislative process. In modern days, Justice Scalia says,    the floor is rarely crowded for a debate, the members generally being occupied with committee business and reporting to the floor only when a quorum call is demanded or a vote is to be taken. And as for committee reports, it is not even certain that the members of the issuing committees have found time to read them. n96 The undisguised import of Justice Scalia's discussion of legislative history is that by ignoring it, the Court hopefully will cause Congress to stop creating it and instead legislate in some more appropriate fashion. If any judicial endeavor is susceptible to being labeled "problem solution" or "oversight," it is that one. Justice Breyer's stated goal of determining the purposes of the text being interpreted and considering whether the consequences of a particular interpretation meet those purposes, must be thought the less activist approach.    This reviewer finds most pleasing the acknowledgment in Active Liberty of the challenges judges face in the exercise of interpretation, whether constitutional or statutory an acknowledgment that stands in stark contrast to Justice Scalia 's seemingly blind faith in the clarity of the English language. n97 Regrettably, Active Liberty nonetheless disappoints. With the limited exception of his chapters on statutory interpretation and administrative law (and their invocation of the reasonable Congressperson and the use of all available information), Justice Breyer has failed to prescribe a ground up methodological approach to understanding the meaning of ambiguous texts. He demonstrates that reliance on purposes and consequences is effective post hoc as a means to rationalize a result already reached, but its use as an interpretive tool presumes an ex ante ability to determine a text's "purpose." n98 That determination might be thought as monumental a task as the very interpretive exercise being undertaken. This failure to prescribe a method is particularly disappointing because Justice Breyer, as the voice for the Court's ideological center, is seemingly well positioned to lead a majority of the Court in applying a coherent interpretive philosophy.    Instead, like Justice Scalia's A Matter of Interpretation, Active Liberty probably serves the reader best by providing readers insight into the thinking of one of this Nation's nine most influential jurists. This reviewer has reduced a particularly important insight into a pithy phrase for the title of the review: Justice Breyer forcefully argues that all available information bearing on difficult interpretive issues should be considered. In fact, in possible derogation from the analysis in the prior paragraph, this methodological tool does promise majority acceptance see, for example, Koons in an evolving Supreme Court. And even the gulf between Justice Breyer and Justice Scalia does not in all situations appear insurmountable. Active Liberty demonstrates a reasoned thought process that should encourage efforts toward bridging the gap. All this, and much else about Active Liberty, make it well worth the read.
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