The Rule of Law - Scalia

22 Jul, 2024

Scalia A, The Essential Scalia: On the Constitution, the Courts, and the Rule of Law (Crown Publishing Group 2020)

Oliver Wendell Holmes Lecture 1989 at Harvard Law School

• This essay explores the dichotomy between, general rules and personal discretion with respect to law made by courts
• In deciding the correct method of interpreting the law, the Court can either lay down a general principle, or leave ample discretion for future decisions
• There are conditions where, by narrowly construing the ratio of a precedent, future courts can exercise more discretion. By sticking to the facts rather on general principles which suffer from the perils of generalisation, the common law system provides for the gradual and deliberate development of the law.
• This comes with its own disadvantages, exercising discretion in deciding legal issues suffers from the lack of equality of treatment. Of course no two cases are the same, but those in similar situations end up with different outcomes due to lack of uniformity in interpretation.
• The fact that SCOTUS takes up a very low volume of cases year, it is impossible for it to completely develop a particular rule of law by 'deciding one discrete fact after another'. It will be several months, or years before the Court revisits a particular branch of the law. The discretion conferring approach thus leaves with imperfect legal principles as the long and deliberate development of law as suggested earlier is not possible by hearing a fraction of the cases the subordinate Courts deal with. They lead to under-developed legal principles which do more harm than good.
  • The essential religious practise doctrine, is one such concept I remember in Indian Constitutional jurisprudence where discretion leads to unequal outcomes. Only those practices that the Court decides as being 'essential' are constitutionally protected. (Indian Young Lawyers Association v. State of Kerala). The problem is as Justice Scalia observes, in the absence of a general rule as to what constitutes a 'essential religious practice', cases are decided erratically. There is no clear way to know whether the Court will accept a practice as essential or not
• Another issue is that of predictability. Bentham has often criticised the 'common law' for being unpredictable and lacking uniformity. This is why he called it a 'dogs law', characterised by 'conflicting qualities of arbitrariness'.¹ Justice Scalia, takes a similar approach to criticising the discretion-conferring approach.
• Law requires for its subjects to know and fully understand what it prescribes. By adopting the discretion-conferring approach the Court takes away the law's reckonability. Scalia J thus aptly remarks that sometimes a 'bad rule is better than no rule at all'.
• The Justice remarks that by creating general rules, the Court does not exercise judicial over-reach. In fact by making as little law as possible, the Court to develops new rules and novel interpretations in every other issue. The Court may decide outcome X for case A and then decide that on balance case B does not relate to the circumstances of case A and thus outcome Y is prescribed. Two new laws emerge out of this, rather than one general principle that could have been applicable to both. Sometimes it is almost impossible to reconcile with the differences, leading the Courts to setup separate benches that are tasked with eventually laying down a general principle that is given finality. (for instance see Krishna Kumar Singh v. Union of India²)
• These general principles also embolden the judges of the Court. When asked to decide a matter that has polarised the popular will, judges can stand behind the strong shield of firm and clear legal principles established in earlier cases. The Court is not seen as a biased institution even if the outcome of the case is against popular will, because the use of established legal principles gives it a sense of 'neutrality', that the Court simply applied the law as it is'. The appearance of use of discretion in such cases would severely impact the stature and the standing of the Court.
• Justice Scalia quotes Aristotle approvingly when he says

(...) personal rule whether it be exercised by a single person or a body of persons should be sovereign only in those matters on which law is unable owing to the difficulty of framing general rules for all contingencies to make an exact pronouncement.

• Even when a personal rule is created by the Court, this rule must be founded on a text that the Constitution or the Congress has provided.
• It is not difficult to develop general rules, the Justice observes, the difficult part is to reconcile them with the ever evolving nature of the concepts on which the rule is founded. This requires one to acknowledge that evolving concepts are strictly limited by the actual practices of society which are reflected in legislation passed by its legislatures.
  • What Scalia J means by this is that general principles are not rigid. Evolving ideas are limited by the actual practice of the society, and therefore any substantive change in social practices is going to be reflected in legislation. Because general rules are founded on the principles of enacted law or the Constitution, they change as the law changes.
• General principles can also be established without a strong textual foundation, but in the absence of a textual anchor, the general rule appears more like legislation which is fundamentally against the separation of powers.

Five Ideas

1. Judicial decisions, involve either establishing general principles or leaving ample room for discretion in the future.
2. While the discretion-conferring approach, protects from the perils of generalisation (imperfectness), empower the Courts and allow for the gradual and deliberate development of the law.
3. They suffer from lack of uniformity, predictably and equality of treatment.
4. General rules need to be developed with a sound foundation in textual sources from the Congress or the Constitution. In the absence of a textual anchor it develops into judicial legislation.
5. A general rule be extended as far as the nature of the question allows and that when it no longer possible to depend on nothing but the totality of the circumstances, the Court acts as a fact finder rather expositors of law. No binding rule must come out of an issue that is primarily fact based as the mode of analysis was factual and not legal

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