If judicial philosophies interest – or concern – you, Professor Nicholas Bagley of the University of Michigan law school has been out in the wild and collected a specimen of a new species, and reports on it in The Atlantic: Its first prey is the ACA, he says:
The explanation is rooted, I think, in a sort of Know-Nothingism that’s taken hold in some corners of the conservative legal movement. This Know-Nothingism is a cancerous outgrowth of textualism, a method of statutory interpretation to which most Republican-appointed judges now subscribe.
Though I have my quarrels with textualism, its key insight is correct: Close attention to statutory text really is the best way to discern a law’s meaning. As sophisticated textualists understand, however, reading the text doesn’t mean we must ignore what Congress meant to accomplish. To the contrary, as Caleb Nelson (himself a textualist) has explained, “Judges whom we think of as textualists construct their sense of objective meaning from what the evidence that they are willing to consider tells them about the subjective intent of the enacting legislature.”
But, much like evolution, texualism appears to have spawned some dead-end individuals:
The Know-Nothing judge, however, like a 1970s French literary theorist, denies we can ever know what Congress really means to do when it passes a law. And why should we care anyhow? Intentions aren’t laws. If assigning the most literal interpretation to a statute’s text subverts what Congress intended, so be it. The Know-Nothing judge consoles herself with the fable that all she’s doing is applying the law. She’s not an activist. You are.
This is akin to solipsism, the juvenile philosophy that, because there’s no apparent way to prove anyone but your mind exists, one should operate as if the only existent creature is yourself, as the rest is just figments of your imagination.
Bagley’s having none of it. The ACA suit is currently in front of the Fifth Circuit Court:
Maybe the Fifth Circuit judges won’t endorse these Know-Nothing arguments when it comes time to write their opinion. But if they do, they will be willfully ignoring everything we know about the broader statutory language, about Congress’s failed campaign to repeal Obamacare, and about the consolation prize of repealing the mandate.
Because in the hands of a Know-Nothing judge, interpretation is not about fidelity to Congress. It’s a lawyer’s game deployed for partisan ends. Know-Nothing judges may drape themselves in the robes of judicial modesty, but they are activists to the core. And they may decide the fate of health reform.
It’d be interesting to know if judicial procedures have always operated with the knowledge of Congressional intent, thus rendering this ignorance of same to be an untraditional, unconservative approach to the judicial process, or if this is part of the wash of tides of history. While this approach may seem reasonable, when taken into the real-world context that laws are the result of committees working long and hard on, and then the same laws being amended by the efforts of further committees, often separated in time by years and years, it renders the approach quite unrealistic, even ludicrous.
Will it continue? I suspect so. The current conservative mind-set tends to plunge ahead with little reflection on implications. At least until they begin generating ludicrous results – or get themselves impeached out of their chambers.
