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05/18/2017

John Manning and Mitchell Berman on Scalia's 'A Matter of Interpretation'
Michael Ramsey

Recently published in the Michigan Law Review, two new reviews of Justice Scalia's classic book "A Matter of Interpretation." From John Manning (Harvard): Justice Scalia and the Idea of Judicial Restraint (115 Mich. L. Rev. 747 (2017)).  From the introduction (footnotes omitted):

When one thinks about Justice Antonin Scalia’s legacy, it is tempting to focus on his role in promoting statutory textualism and constitutional originalism. He pressed these related approaches with surprising success in a legal culture that had not taken either idea all that seriously before his arrival on the Court. He accomplished this feat, in part, by developing the affirmative claim that taking the text seriously best respects the democratic process. For him, if a lawmaking body goes to the trouble of reducing its policies to writing through a carefully prescribed process, then common sense dictates that a faithful interpreter must ascertain, as accurately as possible, the meaning of the words the lawmaker has chosen.

Perhaps no less important, however, was his negative claim about appropriate limits on judicial power in our system of separated powers. Every theory of interpretation entails a theory of lawmaking and of adjudication. Justice Scalia’s was no exception. Much of his theory of adjudication built on what he took to be a constitutionally warranted view of judicial restraint. In the Tanner Lectures he published as part of A Matter of Interpretation: Federal Courts and the Law, his defense of textualism and originalism rested heavily on a critique of the “common law” mindset that he saw federal judges bringing to statutory and constitutional interpretation (pp. 3–14, 16–18, 21, 25, 28, 36, 38–39, 45–46). In this account, as in many of his most arresting opinions,7 Justice Scalia exploited an apparent cultural suspicion of judicial discretion—especially the kind that judges exercised sub rosa, as in the guise of legislative intent or living constitutionalism. If our system of government makes the democratically accountable branches primarily responsible for lawmaking, he did not want the federal judiciary to make an end run around the democratic process by exercising common law discretion “to make the law” (pp. 6, 10).

And from Mitchell Berman (Pennsylvania): The Tragedy of Justice Scalia (115 Mich. L. Rev. 783 (2017)).  From the introduction (footnotes omitted):

Given the magnitude of Scalia’s renown and the intensity of the passions he has engendered, it would be folly to advance in this space any bold new thesis on his jurisprudence or judicial legacy. My ambitions, accordingly, are less grand. They are to offer an account of his central jurisprudential claims, the arguments he marshaled, and the difficulties they encountered, in a fashion that might enable partisans on both sides of today’s legal, cultural, and political divides to see a little more clearly at least some of what their opponents see—the other side of Scalia’s legacy. I will try to accomplish that task by concentrating on his Tanner Lectures delivered at Princeton two decades ago and published, complete with scholarly comments and his response, as A Matter of Interpretation: Federal Courts and the Law. You might say that my modest goal for this twenty-year retrospective on Scalia’s best-known and most important book is to render Justice Scalia two-dimensional.

Because I will try to make a case both for what was truly great and for what was profoundly flawed about Scalia the jurist, the account that follows depicts him as a tragic figure. That is not a novel characterization. But it remains disappointingly marginal. Too often, Scalia’s critics demonize him as a simple villain, while his acolytes glorify him as a paladin without warts. These are disturbingly partial visions. Commentators who remain blind to the truths that others see vividly will never adequately understand the complex legacy of this complex man. But that is not all. Although tragedies and tragic figures abound in life, tragedy’s natural home is in the theater. Tragedies are performed for an audience. And the power, value, and meaning of tragedy “lies in its capacity to elicit the audience’s response.” Now, precisely how tragedy should affect an audience, or precisely what the audience is supposed to learn, is controversial. If theorists of tragedy agree on anything, it’s that, while a concept of tragedy has been vital in Western culture since ancient Greece, its content, assumed functions, and associated norms, have varied across time and place.8 Still, there are lessons we can learn—not only about him, but also about our own condition—by understanding Scalia in tragic terms. Or so I hope to show.