Interpreting the Scalia-Breyer debate

The transcript of the Scalia-Breyer discussion on the role of foreign law in US courts deserves careful study, and I am sure it will prove to be an enduring document for scholars, in no small part because each Justice used the occasion to go beyond the narrow question of foreign law to make a statement about his respective philosophy of judging. In Justice Scalia's case, of course, that was a restatement of his familiar views on originalism.

Justice Breyer's remarks on his philosophy of judging, however, were especially important. He reinforced the view, I think it fair to say, that his philosophy of judging is characterized by not differentiating between the Constitution and other legal texts that a judge must use in order judge. He emphasized this when he spoke about the day to day work of judges, reading briefs and, as he joked, "doing homework." For most judges - for reasons that are a matter of a philosophy of judging arising from a political philosophy that privileges the Constitution as the constitutive text binding together a political community - the Constitution and its interpretation are different from any other kind of text. The difference is in kind and not merely degree. It cuts across political views and temperments - liberal as well as conservative judges, political liberals, political conservatives, judicial liberals, judicial conservatives - see the Constitution as different in kind from other texts with which a judge must grapple.

Justice Breyer, by contrast, suggested otherwise for his philosophy of judging. The Constitution is a sacred text in our political culture, yes, and worthy of our highest respect, and so on - but in terms of its interpretation in the process of judging, it is not different from other texts. Moreover, it is mediated in reaching a judge by the process of litigation itself - lawyers' briefs, lower court rulings, etc., all intermediate the Constitution in the process of what a court does. It does not lower the status of the Constitution nor does it underestimate it - but Justice Breyer says, in effect, we must recognize that the Constitution in a particular case, about a particular subject matter, in a particular litigation, comes to the judge already highly interpreted, packaged, mediated - and indeed only particular bits of the Constitution. And it is dealt with as other legal materials offered by litigants - something that the judge takes in through the process of judging.

I've sometimes seen it remarked that Justice Breyer does not really have a theory of the Constitution as such - he treats it in the same way that he treats other legal materials, on the theory that he laid out in his rightly famous scholarly work, Regulation. Justice Breyer's theory of the interpretation of regulation and ordinary statutes works, for him, quite well for the Constitution. One can see how originalism holds little attraction for him - but equally, the transcendental view of the Constitution, of a Justice Brandeis, for example, holds little attraction for him.

But this view of judging and the Constitution does have a bearing, I would suggest, on his view of foreign law. It is a view of constitutions that is extremely congenial to the legal status and stature of most constitutions in most legal systems. They are constitutive documents in one sense, and higher law, but not much higher. Easily amended, highly programmatic - they are not seen in the way that the Constitution is typically seen in America - the compact which established the political community, with all the sacred and transcendental overtones accompanying the forging of a political community. Justice Breyer's view of constitutionalism is much closer, it seems to me, to the view of constitutions that do not have the transcendental overtones, the foundational mythology, the sacred text that the US Constitution has. It means that it is far easier for him to import legal materials from outside the hierarchy of US law culminating in the Constitution itself, even in interpreting the Constitution, because for Justice Breyer, the Constitution more like a constitution. It is not a transcendental, sacred document the nature of which serves to exclude materials that do not arise from within the political community whose boundaries it sets, and exists to set.

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That said ... in studying the Scalia-Breyer transcript, I am struck by how remarkably substantive it is. It is hard, reading the document, to believe that these two Justice were speaking extempore, off the cuff, in conversation and wholly unscripted. But they were. And because they were, it is important that the individual words and phrases used not carry more weight than can be put on off the cuff and unscripted phrasing. It is not a document for which it is fair to go after "gotcha" phrases and sentences. This is not the Federal Reserve, issuing delphic statements, the placement of each comma of which is fully intended to carry weight. This is an informal discussion, in which, if one is willing to read it charitably to each party, yields a great deal about judicial philosophy. But it must be read holistically, in the context of an informal discussion and, above all, charitably.

(Update, Friday, January 21, 2005. Julian Ku at Opinio Juris blog has a very interesting comment on the same question, here. Opinio Juris (in my links list) is a wonderful blog, btw.)