Justice Scalia and the rule of law as a law of rules

Cass R. Sunstein

16 Feb 2016

When Mr Stephen Breyer, President Bill Clinton's second appointment to the United States Supreme Court, was sworn in as an associate justice at a White House ceremony in 1994, Justice Antonin Scalia came up to me, put his arm around my shoulder, and said with a bright, mischievous smile, "First Ruth, and now Steve? Cass, it's almost enough to make me vote Democrat."

The late Mr Scalia was witty, warm, funny, and full of life. He was not only one of the most important justices in the nation's history; he was also among the greatest. With Oliver Wendell Holmes and Robert Jackson, he counts as one of the court's three best writers. Who else would say, in a complex case involving the meaning of a statute, that Congress does not "hide elephants in mouseholes"?



But his greatness does not lie solely in his way with words. Nor does it have anything to do with conventional divisions between liberals and conservatives (or abortion, or same-sex marriage). Instead, it lies in his abiding commitment to one ideal above any other: the rule of law.

Mr Scalia gave this title to a vigorous essay in 1989, a kind of cri de coeur: The Rule Of Law As A Law Of Rules. His central claim is that the Supreme Court should attempt to constrain itself by setting out clear, binding rules rather than flexible standards. In his view, predictability is important, for "those subject to the law must have the means of knowing what it prescribes".

Firm rules also have the advantage of inhibiting courts, reducing their discretion and the risk that they will indulge their own political views. When rules are in place, "I will be unable to indulge (my policy) preferences; I have committed myself to the governing principle". Equally important, firm rules can embolden courts as well. There's always a risk that "frail men and women" will fail to "stand up to their unpleasant duty" of protecting unpopular causes, including the rights of criminal defendants. The chances that they will fulfil that duty "are greatly increased if they can stand behind the solid shield of a firm, clear principle enunciated in earlier cases".

Much of Mr Scalia's work reflects his passionate commitment to the rule of law. In interpreting statutes, he was a "textualist", in part because he thought that if judges followed the text, the legal system would become less unpredictable. He believed in adhering to the original meaning of the Constitution, in large part because he sought to reduce the risk that judges would make up the law as they went along.

Under both Republican and Democratic presidents, he vigorously defended the controversial principle that administrative agencies, not courts, should be authorised to interpret ambiguous statutes (so long as their interpretations are reasonable). He insisted that this principle sets out a clear rule for everyone to see - and, thus, promotes predictability while also constraining the federal judiciary.

He was also a fierce defender of the "rule of lenity", which means that where Congress has not spoken clearly, criminal defendants get the benefit of the doubt. Many liberals have been puzzled by Mr Scalia's willingness to embrace this principle. They shouldn't be. For him, the rule of law comes first. People shouldn't go to jail unless Congress has given them fair notice.

Volumes can and will be written about Mr Scalia's approach to the law. Even those of us who disagreed with him (as I often did, sometimes intensely) owe him an immense debt, because the clarity and power of his arguments forced us to do better.

But most of all, I mourn his loss as a person. During my first year at the University of Chicago Law School, where he was then a well-known professor, he treated me with immense kindness - sending me his rough drafts for comments, asking me to write for Regulation (the magazine he edited) and encouraging my primitive academic efforts even as he disagreed with them.

When he left Chicago to join the court of appeals in Washington, he asked me to go to his office. He said, with a paternal air and considerable shyness, that he knew I would be teaching some of his courses, and I was the one he'd like to have his files - filled with illuminating nuggets about the law, which he had accumulated over a period of many years. To a young law professor, that was an act of extraordinary generosity, carried out quietly and with grace.

He was a great man, and a deeply good one.

BLOOMBERG VIEW

[See also this piece on his lecture in Singapore.

Let's see how history remembers him in time to come.]