The latest print edition of National Review, dedicated in large part to the memory of Supreme Court Justice Antonin Scalia, includes Matthew Franck‘s analysis of Scalia’s final two opinions. It seems fitting that both opinions published Jan. 25 dissented from the majority view.
In Federal Energy Regulatory Commission v. Electric Power Supply Association, Scalia fights his colleagues’ efforts to read beyond the text of a federal law. Franck offers an excellent summary of Scalia’s reliance on textualism as a basis for his argument.
In this homely legal case about administrative power, which will largely be forgotten the day after tomorrow by anyone not involved in it, we see so much of what Scalia contributed to the law. Where a statute is plain and unambiguous, he was unwilling to defer to agency interpretations that expanded the government’s authority over our daily lives and our market transactions. He was equally ready to cry foul when his fellow judges relied on dubious precedents, forays into legislative history, creative suppressions of a statutory text’s plain meaning, and special pleading about the federal bureaucracy’s “need” to solve some alleged problem, all in order to justify that same expansion.
Perhaps most notable in the FERC case, despite its hardly being mentioned in the course of his dissent, is Scalia’s defense of Congress, and thus of democracy itself. Congress, the people’s elected legislature, had written the Federal Power Act and created the commission administering it. Who’s the boss here? Bureaucrats who know what’s best for the people? Judges who aid and abet them? Or the people and their representatives? As Scalia and his co-author Bryan Garner wrote in their 2012 book Reading Law, “A system of democratically adopted laws cannot endure — it makes no sense — without the belief that words convey discernible meanings and without the commitment of legal arbiters to abide by those meanings.” The judge is most consistently the people’s champion when he resolves not to be their tribune.
