Did you know that US Supreme Court Justices give frequent interviews? Interviewers (journalists, mostly) often introduce an interview by informing the audience that Justices are famously reluctant to grant interviews. Why? I don’t know. It suits them? Adds to the prestige? As if they were granted an audience with an angel. We do call them Justices. Isn’t that strange? Doesn’t it sound celestial? While the term Judge is evocative and has the same root, it isn’t lofty the way Justice is. Judge is also a verb; Justice is also a Goddess. And if you consider this verb in its full sense, it also is wonderfully descriptive, but Justice is a Platonic ideal. You can judge the quality of borscht. Justice looks only over society. But if we follow this line of thought too far it feels cheaper. Poultry versus chicken; beef versus cow. 

Antonin Scalia gave plenty of interviews. One of his favorite topics was what Justices do not do. They don’t philosophize. They don’t navel gaze or ask deep questions about life. They don’t have constituents to consult or represent.  They do read law, and they strive to apply a set of principles to the practices of interpretation and application. That practice would sound more sober if it were singular, but it applies to both -ions. 

Angel has come to have a strange flavor, hasn’t it? Robert Price and others argue that the existence of angels in Judaism and Christianity is, in some ways, a concession to polytheism. The old gods got let back in through angelology. To me, because of childhood memories, the word angels brings to mind kitsch. 

Scalia was vocal that Justices should not seek to apply the spirit of the law. One reason being that bills are not adopted by individuals but by congress, and the wording of the bills is usually crafted carefully so that they will be voted in favor of, not to voice the intentions of any one person or group. They are full of compromises, and those compromises exist in the sentences written. So to imagine what the authors hoped would be the ultimate outcome is to misunderstand the genre of statute. Maybe you can do that with poetry, but not law. There is no spirit to consult. Isn’t that lonely?

Scalia, religious, has the difference between the genres of scripture and statute firmly in mind, whereas Breyer and others treat the former more like the latter, a living document that does or should embody the saecular (thinking again of roots) spirit of the polis. 

Yet there are various ways in which Justices can glean the intent of the law. One must be familiar with related laws and decisions. A popular principles of jurisprudence is stare decisis—stand by previous decisions. English Common Law was built by stare decisis, through Judges trying to make the outcomes of trials more rather than less predictable, by following rather than constantly deviating from existing judicial reasoning. And as for gathering insight into what the lawmakers intended, besides reading the text, Justices have few alternatives to looking at how the law was actually applied at the time that it was adopted. In other words, looking at what it appears to have meant to them at the time.  Scalia gives the example of cruel and unusual punishment. He argues that we know the legislators did not think they were abolishing capital punishment when they ratified the Bill of Rights because “when the cruel and unusual punishments clause was adopted, the death penalty was the only penalty for a felony.” It doesn’t, in other words, matter what a poll would show to be citizens’ take on the meaning of the phrase cruel and unusual today.

A friend once related to me that Justice Thomas had purportedly been consulting a dictionary. (This friend had ambitions to be a lawyer at the time. She thought it showed his lack qualification. To think that a dictionary would have any bearing on the interpretation of a statute!) Others have made this criticism. I think it’s a strange complaint.  Legislators (or the people actually doing the writing) are not writing in Python. The legislators who vote aren’t reading in Python. While there are terms of art, there aren’t only those. It’s not as if they had a glossary on hand when the yeas and nays were being counted. By ridiculing the use of a lexical, it’s as if we’re asking the legislators to read using only context clues. Sometimes you need to check and see that the meaning of a word is what you think it is, amirite? He hadn’t, by the way, been reading a current dictionary, but one contemporaneous with the adoption of the Constitution. It was the Commerce Clause in question. (Recall that the meaning of the phrase well-regulated has been notoriously problematic.) Our language is well-regulated in one sense but not in the other. 

But isn’t this a lovely phrase from Learned Hand (quote from the above-linked article):

“It is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary,” Judge Hand wrote in a 1945 decision, “but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.”