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Thursday, June 25, 2015

Is Judicial Restraint More of a Method, or an Effect?

Today’s King v. Burwell face-off between Chief Justice Roberts and Justice Scalia illustrates a difference in emphasis between these two mavens of judicial restraint.

For Scalia, judicial restraint primarily means adherence to a neutral method of decision-making. If courts scrupulously follow that proper interpretive method, then they are engaged in judicial restraint—no matter the practical consequences.

For the Chief Justice, by contrast, judicial restraint is more about the destination than the journey. If court rulings are having the practical effect of demolishing  plans or sowing confusion, then they are unrestrained—no matter their method.

Here are a few examples of the Chief’s effects-oriented view of judicial restraint:

[T]he statutory scheme compels us to reject petitioners’ interpretation because it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very “death spirals” that Congress designed the Act to avoid. 


[The] credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid.


Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. 

And here are a few examples of Scalia’s focus on adherence to method:

Words no longer have meaning if an Exchange that is not established by a State is “established by the State.”


But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.


We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct.

These differences between the Chief Justice and Justice Scalia are a matter of emphasis or degree, as almost all lawyers would agree that both method and effect can be relevant when evaluating judicial legitimacy. In King itself, Scalia acknowledges room for atextual interpretation when acting otherwise would yield “a consequence ‘so monstrous, that all mankind would, without hesitation, unite in rejecting the application.’” And the Chief’s majority opinion pays homage to settled methods by paying careful attention to the details of statutory text before turning to case-specific pragmatic concerns.

But method and effect are sometimes thought to point in opposite directions—as both Scalia and the Chief seemed to assume in King. And, in those situations, this difference in emphasis can have real consequences.

Posted by Richard M. Re on June 25, 2015 at 12:43 PM | Permalink


Another possible way to think about the varieties of judicial restraint is to contrast restraining of the role of the judiciary in American society, on one hand, versus restraining the discretion (and therefore power) of individual judges, on the other. That is, Scalia's view seems to be that jurists need to follow a methodological approach that is restrained insofar as it relies on a limited set of tools, resources, interpretive techniques, etc. If, in following that methodological approach, the judge reaches a conclusion that will dramatically affect society and our system of governance, so be it. Roberts, by contrast, seems to have strong views about the judiciary playing a more limited and modest role in American society, but he seems content to leave individual jurists with a more-or-less unlimited array of tools and techniques to do their jobs.

Posted by: GCWV | Jun 26, 2015 9:34:16 AM

This is a charitable reading of Scalia's approach, and I think a misunderstanding of Roberts'. Both opinions purport to be restrained and minimalist in the sense that they are only carrying out what Congress has done. Nowhere does Roberts say that the Court is ignoring what Congress actually did in order to get to a good "effect." Instead, all of the outcomes he describes are data points in the contextual inquiry: is this outcome consistent with our textual evidence about what Congress enacted? A statute that starts with a preamble announcing its intention to stabilize insurance markets probably shouldn't be interpreted in a way that destabilizes them.

Scalia, in contrast, arguably discards his own teachings on method (in particular, the importance of meaning in context) in order to reach a result he finds ideologically congenial. I've been combing over his book for the exception he invents here, the "but if this particular phrase is relatively clear, don't look at any of the other context," so far without luck. You?

Posted by: BDG | Jun 25, 2015 5:01:50 PM

Possible monikers: "procedural restraint" vs. "substantive restraint"?

Posted by: Scott Dodson | Jun 25, 2015 4:19:31 PM

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