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Monday, April 11, 2005

AmosAnon1 on Schiavo and Legal Realism

In recent weeks, conservative politicians (like this one and this one) and commentators have been blasting the judges involved in the Schiavo case for applying their own philosophical principles, politics, and preferences rather than simply assessing the law and the facts.   In other words, they have once again adopted the Legal Realist critique.  This post considers the realist critique in general and assesses its applicability to, and implications for, the Schiavo case. 

I will argue that the default rule in interpreting ambiguous statutes should be that judges seek to do the opposite of what Congress may have intended.  In other words, if a court were to conclude from its review of legislative history (etc.) that Congress meant to do X had it spoken directly to the matter, then the Court should do not-X, assuming the choice is binary; that way if Congress doesn't like the result, it will fix it with more clarity. 

Realists also argue about whether Legal Realism is better understood as a critique or as a description: is the fact that judges go beyond doctrine a problem that must be fixed, or a truism that must be accepted?

Regarding the first question, I believe that Realism usually applies only in the most difficult cases.  I refer to "difficult cases" in two senses: (1) where doctrine offers no obvious solution, so that judges are not only unconstrained, but also required to move beyond the doctrine or text; and (2) where the underlying issue is itself politically charged, such that judges are likely to already hold strong opinions.   The more ambiguous the text or doctrine, and the more contentious the issue, the more likely a judge's own affiliations and preferences are to come into play.   These cases are in the minority at the Circuit level, but they may be the most important and highest profile.  Thus, the application of the critique may be overstated, but its significance is not.

As to the second question, I think the answer is "both."  If we are committed to judicial interpretive supremacy (a commitment increasingly under attack from both the left and right), then we must accept that fixed texts and doctrine cannot resolve every case.   Realism is a fact of life.  However, we can and should seek to minimize the application of Realism where possible, because it can lead to dangerously anti-democratic results.

However, Congress has developed a culture in which statutes are drafted poorly and ambiguously, necessarily leaving them open to multiple interpretations.   

There are two reasons for this.  First, enacting legislation in the face of competing interests and a closely divided legislature and electorate is no easy task. 

Sometimes there is no way to get the necessary majority or supermajority if contested issues must be hashed out at the beginning.  Legislators are all too happy to duck the most difficult issues and avoid the political fallout and allow courts to interpret away" any ambiguities.   

Second, courts encourage this behavior by making themselves available to step in to "save the day" and interpret away ambiguities.   As much as legislators denounce "activist judges" who "make law by interpreting it," the lawmakers wouldn't have it any other way.

In short, there is a symbiotic relationship in which legislators have incentives to leave ambiguities in texts, and courts accommodate them. The key, of course, is to make Congress write better laws.

Generally speaking, when texts are ambiguous, individual judges apply interpretive techniques to figure out what Congress "meant," or how it "would have ruled" on the issue at hand.   

In a nutshell, this is what happened in the Schiavo case.  Congress enacted emergency legislation to allow federal courts to review the Florida courts' decisions (under what I call the "emerging 'Florida Exception' to principles of Federalism).  Knowing full well that federal courts would immediately be faced with the question of whether to reinsert Terri Schiavo's feeding tube while the litigation was pending, Congress nevertheless chose not to address that issue in the text of the statute, possibly because it would have failed to get a majority had it explicitly taken sides on the question.

That left it for courts to muddle through the congressional record to determine whether Congress meant for the tube to be reinserted.   An epic battle ensued between a three-judge panel of the 11th Circuit.  Two Republican appointees found evidence that Congress intended for existing doctrine on temporary restraining orders to apply.   This meant that Terri's parents had to show a likelihood of success on the merits in order to have the tube reinserted pending litigation, a showing they could not make.   The dissenting judge, a Clinton appointee, argued that Congress obviously intended for the tube to be reinserted, for if it were not, Terri would die and the federal case would be moot.   

(Orin Kerr debated this issue with Hugh Hewitt here, here, here, and here.)

Notice that odd lineup: the Republican appointees vote not to reinsert the tube, and the Democrat appointee strongly advocates reinsertion.   Essentially, the judges were acting apolitically, as they should have.  They did the best they could, the most anyone could ask.  But they never should have been put in this position.   Congress made the Schiavo case a major and divisive political issue.  The legislators should have taken the heat.   Instead, the legislators get to sit back and say, "We did the best we could.  Blame it on the unelected judges."

For the future, let's do everything we can to make Congress write better laws and stop passing the buck to courts.

Here is one thought on how to incentivize Congress to pass clearer laws.  Rather than interpret ambiguous legislation to effect Congress's apparent will, courts should instead develop a doctrine that ambiguous statutes will be interpreted precisely to the opposite result of Congress's apparent preference.

This is the equivalent of slapping Congress on the wrist.   Judges would address Congress explicitly and state: "You left this ambiguous, even though you knew full well that it would be a contentious issue.   You didn't want to deal with the political pressures, so you left it for us, unelected judges, to sort out.  It is not our job to clean up your mess and allow you to duck your responsibility to the electorate.   You may not shirk your duty and pass the buck to us. From our review of legislative history (etc.), we think you would have done X had you thought the issue through and spoken directly to it.   We are going to rule Y, exactly the opposite of X.  If you don't like it, fix it."

In other words, courts should punish legislators for passing the buck. If Congress is unhappy with the result, it may write new legislation clarifying the ambiguity; and eventually, Congress could develop a culture in which it crafts better statutes.   (Note that everything I have said applies equally, and perhaps even more, to regulations crafted by administrative agencies.)

To be sure, this is a radical approach that would not be easy to implement.  It also must be implemented carefully, for it does not apply in all cases.

I'm very interested in your thoughts.



DM: Setting the default rule to be a penalty in public law is a very interesting idea. FSU's Law School held a successful conference on the very subject of Default Rules just a few weeks ago.  Details here.  The proceedings of the symposium will be published in the FSU Law Review; drafts of the papers and more information on the conference can be obtained from Associate Dean Jim Rossi (jrossi at law.fsu.edu).

Broadly stated, Legal Realism can be defined as the theory that judges decide cases based on political obligations, policy preferences, and personal philosophies rather than on fixed and neutral doctrines, rules, and texts.   (Some may quibble with this definition, but it suffices here.)

Realists (and everyone is a realist to some degree) disagree amongst themselves as to the applicability of Realism: does it apply to all cases, most cases, some cases, or a few cases?   

Posted by Administrators on April 11, 2005 at 08:57 AM in Legal Theory | Permalink


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