Scalia's Temporary Retreat from Textualism
By Daniel Block | Jul 07, 2015
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 v. Burwell, 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 v. Timbers 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 v. EPA, 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.