Justice Scalia and the Legislative Process

Abstract

For two generations, the Legal Process school of interpretation supplied the dominant framework for understanding statutory interpretation. At the most basic level, those materials instructed judges (a) to assume that the legislature consisted of “reasonable persons pursuing reasonable purposes reasonably” and (b) to interpret statutes accordingly. This essay examines ways in which Justice Scalia challenged this consensus. In particular, Justice Scalia emphasized that all legislation is as filtered through the complex processes that our Constitution prescribes for reducing policy impulses into binding law. Those processes consist of the steep requirements of bicameralism and presentment and the various rules of procedure that each House has adopted pursuant to its Article I authority to do so. According to Justice Scalia, those procedures deliberately make it difficult to enact legislation. This feature, in turn, accords to political minorities extraordinary power to block legislation or insist upon compromise as the price of assent. Sometimes the resulting compromises will be awkward because proponents of legislation must accept half a loaf. Hence, said Justice Scalia, to assume that laws are reasonable and coherent (as the Legal Process school did) is to deny the realities of the legislative process and to give short shrift to the very possibility of legislative compromise.