Why they legislate 'from the bench'

President Bush, in nominating John Roberts to be chief justice of the US - along with conservative senators questioning him during his ongoing judiciary committee hearings - insists that if confirmed, Mr. Roberts will not "legislate from the bench." From within the court, Justice Antonin Scalia has complained that the common-law tradition leaves judges too free to make a decision that pleases them and then hunt up prior cases or evidence of "legislative intent" that can be interpreted to support their position.

Such judicial arrogance, Justice Scalia argues, leaves us an uncertain law different from the language in the statute book and tainted by the political preferences of judges. Protection against such "activism" can be won by insisting that statutes be enforced precisely as written, what Scalia calls "textualism."

But textualism can be no better than its texts, and these are mostly pretty bad.

Some years ago, I had occasion to ask the chief legislative draftsman of the House of Representatives how I or anyone else was supposed to make sense of a self-contradictory paragraph in a bill affecting financial regulation. "Oh, yes," he said. "That was one of those times - they're not uncommon - when you could get agreement on language but not on substance."

Laws are written in the United States in a conference committee where congressmen and senators horse-trade favorite provisions. There are lots of compromises. Often enough the final version suffers what Dean Acheson called "agreement by exhaustion." After all, legislators have a final luxury: They can leave it to the courts to decide what they really meant - indeed, what they really said.

When a bill comes to the floor after its time in conference, legislators vote for the package, not the individual clauses. Litigants later claiming that some law is on their side are likely as not to cite a section that most congressmen didn't know was in the bill. They vote "yea" because the leadership wants them to do so, or they promised Teddy, or because something else in the legislation has provoked the enthusiasm of a significant constituent.

The text of a statute, then, may be ambiguous or even opaque. Felix Frankfurter, whom Judge Roberts has cited as his guide in the interpretation of statutes, noted in 1947 that "The Court no doubt must listen to the voice of Congress. But often Congress cannot be heard clearly because its speech is muffled."

Moreover, courts have to decide cases as they arrive at the docket, while the legislators can sit around and talk. Judges trying to "find" the law that applies to some case may find that the world has changed and the law has not. Back in 1968, the Supreme Court had to decide whether cable television companies should pay copyright fees to the broadcasters whose programs they distributed, and Justice Potter Stewart decided they need not. The decision was based on a statute. "We take the Copyright Act of 1909," Justice Stewart wrote, "as we find it."

There certainly is authority going way back to justify looking beyond the language of a statute. In 1805, Chief Justice John Marshall noted that "Where the mind labors to discover the design of the legislature, it seizes everything from which aid can be derived."

The words of a statute, Justice Benjamin Cardozo wrote in 1936, "come freighted with the meaning imparted to them by the mischief to be remedied."

Justice Frankfurter ended his talk by remembering an Emerson comment that mankind is as lazy as it dares to be and by quoting the philosopher Walter Pater: "Words are clumsy tools, and it is very easy to cut one's fingers with them."

Pledges to honor the plain meaning of a statute - or an article of the Constitution - cannot carry much weight when the words do not in fact convey a plain meaning. If it were easy to find what laws mean, we wouldn't care so much who serves on the Supreme Court.

• Martin Mayer, a guest scholar of the Brookings Institution, has just completed a book, 'Judges,' that will be published by St. Martin's Press in 2006.

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