Posted by Orin Kerr:
Hugh Hewitt Responds on Schiavo and the Judiciary:
Hugh Hewitt has [1]responded to [2]my questions about [3]his reaction
to the Schiavo court decisions. He writes:
[A]nyone trying to argue that Congress did not make its intent
clear . . . are asking their readers to disbelieve what nearly
every commentator has either praised or condemned over the past few
days -- that Congress intervened on behalf of Terri Schiavo with
the intent of restoring her care during the interim period when a
federal judge could review her situation de novo. Straining to see
other than judicial contempt for that effort is just not
persuasive. . . . [H]ere there is only judicial contempt for the
coordinate branches blended with cowardice that compels absurd
arguments about what Congress did and did not intend.
Orin should answer the question: Did Congress intend Terri
Schiavo to die before a de novo inquiry into the circumstances
surrounding her condition was complete?
I'm afraid Hewitt misses the point. The key question is not what
Congress intended, but what Congress actually did. Judges are not
tasked with following the reasons why "nearly every commentator" has
"praised" or "condemned" legislative proposals. As I see it, their job
when interpreting statutes is to read the law that Congress enacted
and to do what that law and existing precedent tell them to do. As
Justice Holmes explained, "We do not inquire what the legislature
meant; we ask only what the statute means." Oliver Wendell Holmes,
Collected Legal Papers 207 (1920).
Of course, there are different views on the role of text and
legislative intent in statutory interpretation. Some people think that
courts should follow the text and the text alone; others think that
the courts should follow text as informed by legislative history;
still others think that the courts should follow text as infomed by
context or the apparent purpose of the legislative action. This is an
interesting and complex debate, and not one we can resolve here. I
think it's fair to say, however, that the mainstream of legal debate
today presumes that a judge's job is to follow the language of the law
the legislature actually enacted as at least the primary guide to
interpreting statutes, rather than the statements of individual
legislators or commentators. The reason for the importance of text is
simple democracy: the Constitution sets out very specific rules for
enacting laws, and the job of the courts is to interpret laws validly
enacted pursuant to that constitutional scheme. Following the text
ensures that the courts obey the laws that Congress actually enacts,
rather than the laws that some legislator or commentator hoped to
enact but lacked the political support to enact.
The problem with having courts follow the statements of individual
lawmakers and commentators is that their views are not subject to the
constitutional lawmaking processes. Being outside of the lawmaking
processes, these individualized expressions of intent cannot provide a
sound standard for interpreting statutory commands. Legislation is
usually the product of compromise, and different legislators and
commentators have different goals, hopes, and aspirations. Following
the expressed views of any one individual or faction would allow that
person or group to bypass the Constitutional lawmaking process and get
their version of what they hope or wish the law did enacted into law
without being subject to the Constitution's requirements. The Supreme
Court expressly counseled against this in Circuit City Stores v.
Adams, 532 U.S. 105, 120 (2001):
We ought not attribute to Congress an official purpose based on the
motives of a particular group that lobbied for or against a certain
proposal--even assuming the precise intent of the group can be
determined, a point doubtful both as a general rule and in the
instant case. It is for the Congress, not the courts, to consult
political forces and then decide how best to resolve conflicts in
the course of writing the objective embodiments of law we know as
statutes.
A sensible approach, I think.
Hewitt ends his post by giving me an assignment: "Orin should answer
the question: Did Congress intend Terri Schiavo to die before a de
novo inquiry into the circumstances surrounding her condition was
complete?" The truth is, I have no idea. I don't know who Congress is,
or who to ask to find out what this Congress person thinks. I don't
know what kind of deals were struck and compromises reached behind
closed doors that led to the legislation that passed. I have no idea
whether the legislators who expressed views on the record as to what
they expected the legislation to do were a) accurately reflecting the
sense of most legislators; b) merely expressing the intent of a number
of legislators; c) only articulating the hope of a few; or d) simply
trying to please particular interest groups by stating the law they
supported would achieve a particular result even though they knew the
law would do no such thing. My point is that it doesn't matter which
of these is true. The law is the statute that Congress passed, not the
expressed intent of particular legislators or articulated
understandings of particular commentators.
Finally, given that Hewitt ended his post with a challenge for me,
permit me to end with a challenge for him: Hugh should say whether he
thinks that the plaintiffs in the Schiavo case have a winning case on
the merits, and if so, on what specific constitutional or statutory
grounds.
References
1. http://www.hughhewitt.com/#postid1481
2.
http://www.volokh.com/archives/archive_2005_03_20-2005_03_26.shtml#1111600682
3. http://www.hughhewitt.com/#postid1480
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