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Scalia's Temporary Retreat from Textualism

In a 1996 essay, Antonin Scalia declared war on judicial activism. He criticized justices for ruling according to their personal predilections and blasted the American legal system for being populated by “lawmaking” judges who usurp the democratic process by using whatever means necessary to bring the case to a desired resolution.

As a result, Scalia proposed that judges adhere to a form of statutory interpretation called textualism, in which they examine only the text of the law in question when issuing decisions. While this means judges should avoid outside sources of information (like the legislation’s history), Scalia insisted that they should still read an act “to contain all that it fairly means” and avoid adhering rigidly to individual clauses, particularly if doing so would produce absurd results.

The Court’s ruling in King vBurwell, which held that four obscure words in the Affordable Care Act did not bar the federal government from providing subsidies to citizens who purchased insurance on federally run exchanges, thus ought to be a truly sweet moment for Scalia. The case was created, contested, and decided on largely textual grounds, and the majority opinion, written by Chief Justice John Roberts, was “perfectly consistent with textualism,” says Nicholas Bagley, an assistant professor of law at the University of Michigan and the co-author of an amicus curiae brief in King.

But Scalia, who is on record as believing the entire act to be unconstitutional, wrote a blistering dissent that called the Court’s majority decision an example of judges using “interpretive distortions … to correct a supposed flaw in the statutory machinery.”

“Our only evidence of what Congress meant comes from the terms of the law, and those terms show beyond all question that tax credits are available only on state exchanges,” Scalia wrote. But as Bagley points out, such a position is inconsistent with Scalia’s stated emphasis on avoiding ironclad literalism.

“The [majority] opinion does not rest on legislative history or what was on Congress’s mind,” Bagley says. “The opinion rests on the text’s statute.”

Indeed, in his opinion, Roberts cited previous instances where Scalia stressed the importance of textualism. In United Savings Association of Texas vTimbers of Inwood Forest Associates, Scalia wrote that “a provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme” and in Utility Air Regulatory Group vEPA, Scalia wrote “that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”

Even in the 2012 ACA case, Scalia seemed to have no trouble discerning that federally provided subsidies were essential to the act’s machinery, writing that without them, “the exchanges would not operate as Congress intended and may not operate at all.”

But it is apparent that three years later, when such a holistic reading of the act would mean its survival, Scalia suddenly saw things a little differently. 

Will Students Soon Be Tested for 'Grit'?

The National Assessment of Education Progress (NAEP)—nicknamed “the Nation’s Report Card”—is the largest nationally representative assessment that tests what American students know and can do in different subjects.

Curiously, it was recently announced that beginning in 2017, NAEP plans to start measuring so-called “non-cognitive skills” like motivation and grit in the background surveys they issue to all test-takers. Additionally, according to Education Week, questions about “self-efficacy and personal achievement goals may be included on questionnaires for specific subjects to create content-area measures.”

Though schools won’t be judged based on these NAEP measures, the article says, “other such tests for accountability purposes may be on the horizon.” A coalition of seven districts in California are reportedly developing an accountability system that will evaluate schools in part by including measures of “growth mindset, self efficacy and self-management, and social awareness.” These are supposed to be in place next year.

The odd thing about this NAEP announcement is that very recently psychologists Angela Duckworth and David Scott Yeager published a paper in the journal Educational Researcher arguing that while emerging findings on character skills are promising, existing research is not ready to be incorporated into accountability assessments. Angela Duckworth told NPR that she feels “enthusiasm” for these measures “is getting ahead of the science” and that wanting to use these skills for evaluation would be gravely premature.

In April I published a long piece on the rise of grit fervor in education reform, which looked at the ways in which current tools to measure grit and other character traits are flawed. There are significant limitations to self-reported assessments, and Duckworth and Yeager’s subsequent journal paper echoed these concerns. Researchers haven’t given up on developing improved measures, and they are currently exploring future possibilities like computer simulations.

The intellectual humility Duckworth and Yeager demonstrated in their paper (and this video) is quite impressive, and should not be understated. Why school districts and NAEP are still intent on moving forward quickly with measuring these skills then deserves some further clarification.

From Our Friends at the Atlantic


If you haven't seen it already, James Fallows, one of our favorite writers (and long-time Prospect contributor), has a very nice write-up of our new issue over at The Atlantic. "Congrats to the Prospect for publishing material like this for a quarter-century, and may it continue," he writes. We'll do our best!