Responding to the ongoing controversy over whether Obamacare’s text providing subsidies only to individuals who purchase insurance on “an exchange established by the state” means that subsidies are restricted to those who purchase insurance on an exchange established by a state, Curt Levey points out in an excellent article, OBAMACARE SUBSIDIES RULINGS: IT’S THE THEORY OF STATUTORY INTERPRETATION, STUPID, that what separates liberal and conservative judges is not simply partisanship but a fundamentally different approach to interpretation. “Yes, judges appointed by Democrats are likely to vote to uphold the ObamaCare rule in question, and Republican appointees are likely to conclude that it is unlawful,” he writes. “However, the predictability comes not just from pure politics but from disparate approaches to statutory interpretation as well. Liberal and conservative judges approach statutes differently, just like they interpret the Constitution differently.”
Levey’s argument (you should read the whole piece) will be familiar to DISCRIMINATIONS readers, at least those of you who’ve been around for a while and have good memories (like me: my memory is still so good, I’m fond of saying [at least I think I am}, that I can’t recall the last time I forgot anything). In Liberals vs. Conservatives: It’s A Matter Of Interpretation (October 2004), for example, I argued that
judicially rewriting a statute through the magic of an unrestrained power of interpretation is called “liberally construing” or “reading loosely.” Liberal judges are quite adept, not surprisingly, at construing liberally….
When conservatives say they want judges who will interpret the law, not make it, they don’t say enough, for the real problem is that liberal judges are loathe to recognize textual or other limits on their power to interpret. If “seven days” doesn’t mean seven days; if “51 days” doesn’t mean 51 days; if selecting presidential electors “in such Manner as the Legislature … may direct” doesn’t mean that the legislature — not the state supreme court, not the governor, not the people through plebicite — must devise the electoral scheme, then there would seem to be few limits on the power of “interpretation” through “liberally construing” words that say one thing to mean something entirely different.
Writing in the New York Times … , legal reporter Linda Greenhouse called the 51 day limit a “formal deadline” — as opposed to what, one wonders? An informal one? Are formal deadlines less binding than informal ones? Similarly, New Jersey Democrats called the statutory requirement merely a “technical requirement.”
If unaccountable judges with lifetime tenure are allowed to exercise unrestrained, unconstrained powers to interpret, constitutions and statutes do indeed become nothing more than the “parchment barriers” Madison warned of, and the people get royally construed.
That post discussed Bush v. Gore (also discussed in We The People … Or We The Courts?) and included links to earlier posts that discussed the liberal construing examples referenced above in more detail: Construed” Once Again…, Construing Liberal Construing, Or: Construe You, and Construing the Construers.
Levey calls attention to the contrasting interpretative methods of Justices Breyer and Scalia:
The liberal philosophy of statutory interpretation is summed up by Supreme Court Justice Stephen Breyer: “judges, in applying a text in light of its purpose, should look to consequences, including ‘contemporary conditions, social, industrial, and political, of the community to be affected.’” (quoting Justice Louis Brandeis). Breyer explains that “Law is tied to life, and a failure to understand how a statute is so tied can undermine the very human activity that the law seeks to benefit.”
Compare this “living statutes” philosophy – to coin a term based on the similar “living Constitution” theory urged by progressives – to Justice Antonin Scalia’s approach to statutory interpretation. He believes a judge’s task is “not to enter the minds of the Members of Congress … but rather to give fair and reasonable meaning to the text of the United States Code.” Scalia notes that “sometimes [that produces] a terrible result because that’s the terrible statute that Congress wrote.”
Congress itself of course has no mind, and trying to plumb the depths (or in the case of “the minds of the Members of Congress,” perhaps the shallows) in a futile attempt to reach Congressional intent is an impossible task. What is the intent of Congress, for example, when members vote in favor of a bill that includes a controversial provision they oppose, as they often do, while others who support that provision vote against the bill? If Senator Foghorn says, “If we pass this bill, the sky will fall!” and the bill passes, was it the intent of Congress to bring down the sky?
If judges started taking the words of statutes seriously as opposed to blank canvasses on which they could paint their own preferred pictures, perhaps Congress would start taking itself more seriously and write its laws more carefully.