We remember Justice Scalia’s dialogue with Justice Bokhary at the Chinese University of Hong Kong, where they discussed a wide range of topics, including their shared passion for the rule of law and its application in a democratic society.
Justice Antonin Scalia, a legal titan of American jurisprudence known for his “peppery prose”, sharp intellect and unwavering support of originalism and textualism during his 29 years on the US Supreme Court, visited Hong Kong in early February 2016.
At a private talk held on 1 February, Justice Scalia joined Hong Kong’s Justice Kemal Bokhary, Non-Permanent Judge of the Court of Final Appeal, in a discussion hosted by Professor Christopher Gane, Dean of the Faculty of Law of the Chinese University of Hong Kong.* The event’s theme was “Justice and Democracy” and was moderated by Professor Bryan Garner, a globally distinguished expert on legal writing who co-authored two books with Justice Scalia.
Professor Garner’s forthright questions sparked a candid exchange between the justices, and his near decade-long personal and professional relationship with Justice Scalia added a layer of intimacy, as the two affectionately ribbed each other and often finished each other’s sentences.
With Justice Scalia’s unexpected death on 13 February, the opinions he shared solemnly reverberate. For instance, he expressed concern over the politicisation of the appointment of judges in the US. He also spoke about the practice of judging, the value of dissents and the role judges should play in a democratic society. While much more was said than can be recounted in this column, excerpts of some of the night’s most memorable moments have been reproduced in Justice Scalia’s honour.
Judging and Justice
Professor Garner wasted no time in setting the tone for the evening. His first question launched the justices into a debate on whether a judge should be concerned with pursuing justice.
For those unfamiliar with the jurists, Justice Bokhary is known for his liberal leanings and authored Hong Kong’s leading judgment on the purposive approach to statutory interpretation (ie, interpreting an enactment in light of the purpose for which it was enacted), while Justice Scalia was a strict constructionist (ie, interpreting constitutional and statutory provisions based on what the terms originally meant to the people who ratified or enacted them) and has been posthumously described as a leader of a conservative intellectual renaissance.
Turning to Justice Scalia, Professor Garner asked if he had previously said judges should not be concerned with pursuing justice when interpreting statutes and constitutional provisions.
“I never said that,” Justice Scalia theatrically responded, prompting laughter to ripple through the room.
“I think we both said that in our book … or maybe I wrote that part,” Professor Garner replied referring to Reading Law: The Interpretation of Legal Texts, the last book they co-authored.
As the laughter faded, Justice Scalia continued, “Well, I was not the first to say it, I’ll put it that way.” According to Justice Scalia, Justice Oliver Wendell Holmes was the first to express that sentiment during a famous incident in which he was heckled by a woman while walking down the street. The woman shouted, “Do justice, Mr. Holmes,” to which the Justice swiftly replied, “Madam, I do not do justice; I apply the law!”
“That is my answer, really,” Justice Scalia said referring to Justice Holmes’ response. “Justice in a democracy is what the people deem to be just. Very often my notion of what is just or what is good differs from the people across the US, which is to say the members of Congress. Where there is a difference, it is their notion of justice that prevails. I very often must reach a result in a case that I think is quite unfair, but if that’s the law, then in my system of democracy, that is the result I must reach.” He later added that unless you subscribe to this, you cannot have a democratic system.
In Justice Bokhary’s opinion, the courts are obligated to do justice and to do it according to law. “We do not have an independent right to do whatever we think is just, but I think the expectation of the people is that they will go to the courts for justice according to law, so that’s what we have to do.”
Justice Bokhary later indicated that if left to his own devices, he would be governed by one of Mahatma Gandhi’s teachings, instructing one who is contemplating any action to turn their mind to the most disadvantaged person whom they last met, and consider how that action would affect her or him and act accordingly. Unfortunately, the court does not have that degree of freedom, he explained. And while we may not be able to put that principle at the forefront of our thinking, he believes that we certainly must at least keep it at the back of our minds.
Whose Justice is Just?
Does that mean a judge should at times be unhappy with his or her decisions, Professor Garner then asked.
“You show me a judge who is always happy with the results he reaches and I will show you a bad judge,” Justice Scalia responded. “That means he is applying his own notion of what the result ought to be, instead of the notion of what is required under the law.”
Justice Bokhary agreed, indicating that it was an “inevitable result”. Take a statute of limitations, he noted, sometimes it might be unfair in the particular circumstances, but it is the law. “You cannot always be happy with the result.”
The hardest thing for a judge, Justice Scalia added, is when the law in question can be interpreted in a way that makes you happy. In those circumstances, you have to “envision” how it would play out under different circumstances.
Justice Scalia went on to explain that his adherence to originalism forced him, at times, to take legal positions that went against his ideological grain. He referred to United States v Eichman to illustrate this point. This US Supreme Court case, decided in 1989, was one in which he joined the majority’s 5–4 decision that held a federal statute criminalising the burning of an American flag unconstitutional. “If it were up to me … I would have put that person in jail right away. I am a very conservative person, but that is just not what our First Amendment says.” The First Amendment of the US Constitution protects the freedom of speech. It was interpreted in this case to also protect expressive conduct.
Points of Divergence
As the discussion continued, Professor Garner asked the Justices to reflect on the major differences in the ways they approach their work.
Justice Bokhary replied that the peculiarities of their current situations made it difficult for him to put his finger on any “particular difference”.
One such peculiarity was the different jurisdictional remits of the US Supreme Court and Hong Kong’s Court of Final Appeal. The US Supreme Court is one of limited jurisdiction, exclusively reserved for cases involving constitutional or federal legal issues, while the Court of Final Appeal is one of general jurisdiction that not only deals with constitutional, but also with common-law issues.
Another concerned the differences between the constitutions that govern each jurisdiction. Justice Bokhary noted that Justice Scalia is concerned with the US Constitution and stands for original intent. But, he said, it was not for him to “enter into a debate” as to what one’s approach should be in that situation. “This is a live issue in the United States, where they have a constitution that is over two centuries old. In Hong Kong, we have a constitution that is less than two decades old. Thus we do not have to deal with the same issue of interpretation, so one really does not know.”
Justice Bokhary indicated that, despite his liberal leanings and Justice Scalia’s conservative approach, he has no idea what Justice Scalia would do if he were on the Court of Final Appeal in his time. “Maybe we would disagree and maybe we would not.”
“That may well be,” Justice Scalia replied. “A liberal justice with a reputation for being, if I may say so, more liberal than you, was Aharon Barak of the Israeli Supreme Court. During his tenure, his Court essentially created an Israeli Constitution by judicial fiat because the Israeli Parliament was incapable of agreeing upon it. Over the years, they agreed on certain principles of judging that would overcome other principles. I am not sure, but I might have done the same thing had I been in his shoes. But as it is, I am in the shoes of a judge in a country that has a well-defined constitution and a well-defined legal system and where democracy is the order of the day.”
Impact of Democracy
Striking at the heart of the debate’s theme, Professor Garner asked both Justices to discuss how being a judge in a democracy affects how they approach their work.
“It is the starting point,” Justice Scalia said. “It tells me that my job is not to make the law. My job is to faithfully reflect on what the people have adopted, either through the ratification of a constitutional provision or through their representatives in Congress.”
Justice Bokhary explained that in the Court of Final Appeal, judges give due regard to separation of powers. “If we consider whether to declare a statute unconstitutional, we would give due regard to the effect of striking it down as a Court of last resort and we would endeavour to read it down, if possible, to avoid striking it down. If we decided to strike it down, we would try to limit the striking down so that we can preserve as much of what the legislature intended as possible.”
Justice Bokhary added that a big problem Hong Kong courts face is how to preserve the rule of law in the absence of a conventional democracy. Justice Bokhary pointed out that the “rights” provision of Hong Kong’s constitution, the Basic Law, includes the right to vote and the right to stand for election, while the “structural” provisions of the Basic Law provide that universal suffrage is the ultimate aim in regard to both the executive and the legislature.
Justice Scalia, placing more weight on the structural provisions of the United States Constitution than on its Bill of Rights formed by the first ten amendments, stressed the vital nature of democracy.
Maintaining Rule of Law in an Evolving Democracy
“Absent a traditional democratic process, can the rule of law prevail?”, Justice Bokhary continued, to the delight of Professor Garner, who indicated that was the next question he intended to ask.
“This is a question I endeavoured to answer in a speech in London in 2010. When this question was first put to me, I said yes, but only under certain conditions.” First of all, there has to be independent judicial stewardship of an entrenched constitution. Second, powers must be properly separated. Third, human rights must be protected conformably with international norms. Finally, the existence of the rule of law must not be treated as justification for delay in democratic development. Without defining the rule of law, these conditions illustrate its nature, Justice Bokhary explained.
“Time has passed, and the situation is getting more acute in Hong Kong. At the time I gave the speech, we did not have a full democracy … but things were still moving ahead. Things have stalled now.” Justice Bokhary noted that young people believe democracy is very important, so if you say that you can have the rule of law without democracy, most young people may not think much about the rule of law. He also indicated that the absence of a fully-established democracy creates some problems. And while he wishes those in Hong Kong weren’t confronted with those problems, he explained that the Court of Final Appeal must face them just like anyone else in Hong Kong does.
Interpretation: Purposivism vs. Textualism
Towards the end of the discussion, Professor Garner asked the justices if they believed the distinction between their approaches to interpretation was illusory.
“Well, I see purpose as a possibility within the language of the text,” Justice Bokhary replied. “I’ve never heard anybody say that you can find a purpose that is not related to the text.”
“Maybe the difference isn’t all that great. I am not sure. You have to look at a specific case … and whether you are adopting a semantic view or a view that is going beyond the text.” Later Justice Bokhary added that the Court of Final Appeal has repeatedly said that their approach to interpretation is purposive.
In response, Justice Scalia indicated that one issue he saw with purposivism is that there are various levels of generality. “We give an example in our book of a law against pick-pocketing. You can say that it is designed to prevent theft from the person. You can say it is designed to protect private property. You can say it is designed to preserve public order. And at the highest level, that it is designed to further the general welfare. There are various levels of purpose, and the purposivist will pick one of those levels. If you pick a level high enough, you can do whatever you want with the statute.”
“The second problem,” Justice Scalia continued, “… is … very often … the statute is a compromise. And if you follow what seems to be the principal purpose, you would destroy the compromise. Because some people did not like that purpose at all and they said … ‘okay, well, we’ll vote for it but only if you stop it here’.”
“I do not look to the purpose of a statute that is not inflected in the text.”**
“Justice Bokhary was saying something very similar,” Professor Garner chimed in. “In fact, he almost sounded like a textualist!”
“No, he is not a textualist,” Justice Scalia said, causing everyone to laugh, almost on cue. “He says it has to be consistent with the text; that it cannot be flatly contrary to it.”
“I have got text here,” Justice Bokhary shot back as he pulled Justice Scalia’s business card from his jacket pocket. “I see his card says ‘Associate Justice’, but I also know that he is proud to be a learned professor.”
In an attempt to further tease out the differences between the two approaches, Justice Scalia then pointed to King v Burwell, an important statutory case that recently came before the US Supreme Court. It required the Court to interpret a provision of the Affordable Care Act, which Justice Scalia referred to in his dissent as ‘SCOTUScare’ but most Americans know as ‘Obamacare’. “There was a provision of it which said that the individuals who registered for medical insurance with ‘exchanges established by a state’ – that was the language of the statute, ‘exchanges established by a state’ – would get subsidies,” Justice Scalia explained.
“Well as it turns out, most of the states did not establish exchanges. And the system would not work if so many people did not get subsidies. So my Court said, well, my god, this thing would not work unless we read ‘established by a state’ to mean ‘established by the federal government’ and that is how we read it. That is purposivism and that is a good example of how a purposivist would reach a different result.”
Justice Scalia indicated that he was adamantly against interpreting the statutory language, ‘established by a state’ to mean ‘established by the federal government’. “If the statute will not work, that means that Congress wrote a bad statute. It’s not my job to improve the statute. They wrote what they wrote.”
“Now many thought, of course, what happened is that the members of Congress were hoisted on their own petard”, he continued, referencing Shakespeare’s Hamlet, “because they were trying to force the states to establish exchanges and it did not work.”
“There is actually a debate about whether it is ‘petar’ or ‘petard’,” Professor Garner interjected with a grin.
“He’s a philologist and he’s such a pain in the neck,” Justice Scalia joshed, shaking his head. “He knows all sorts of stuff like that.”
“Anyway … as it turned out, the statute did not work. So should we revise the statute? No, I don’t think so! I dissented in the case.”
Value of Dissents
Moving on to one of the final points of discussion, Professor Garner invited the justices, both well-known for their dissents, to speak about the purposes dissents may serve.
“Judges have different attitudes,” Justice Scalia said. He noted that one of his colleagues thinks you should refrain from dissenting unless it is a really important point in a really important case; especially at the Supreme Court level. He, on the other hand, does not subscribe to that view. “I have never signed my name to an opinion that I did not think was correct, not only in the result, but in every aspect of its reasoning. If there is one aspect of the reasoning that I disagree with, then I’ll say, ‘I join the opinion except for that’.”
One consequence of allowing dissents and having judges that will dissent when they do not agree with everything, Justice Scalia explained, is that you can hold your judges’ feet to the fire. “I can be criticised not just for the opinions that I have written but also for the opinions that I have joined. … That is good. You ought to hold your judges to principle. You want to hold them to be consistent, and that can only be done if you let them dissent and expect them to dissent when they do not agree.”
Dissents have other values, Justice Scalia continued. “For instance, I am never more confident of my opinion when I’m writing for the majority than when I have a dissent. When the opinion is unanimous, there is nobody to point out potential flaws in my opinion. When you have a dissenter, the dissenter will poke holes in your weak arguments and you can retrench, and that often happens.”
Justice Bokhary agreed with Justice Scalia’s major points, adding that you never know what may happen when you dissent and that sometimes you find the majority will come around. But, he explained, he does not dissent “to start a fight”. He does it because a judge is duty-bound to apply the law as she or he sees fit.
Literary References in Judicial Opinions
Justice Scalia and Justice Bokhary are also both known for quoting Shakespeare.
In addressing a question about the role quoting literary writers has in writing judicial opinions, Justice Scalia said it was a tactic he primarily adopted when drafting his dissents. “It is important to make dissents interesting.”
“What is the use in writing a dissent on the Supreme Court? In the Court of Appeals, you write dissents to warn off other Courts of Appeals, ‘This is a bad decision, you other circuits, do not follow it’. When you are on the Supreme Court, you have lost. Why don’t you just go quietly and say I dissent without giving any reasons?”
“It is very important to make dissents interesting,” Justice Scalia reiterated, adding that he writes his dissents primarily to attract the attention of law professors and law students. “So I will quote Shakespeare. I will use Bugs Bunny. I will use whatever will attract their attention.”
Justice Bokhary was of the opinion that Shakespeare should be used sparingly. The English Shakespeare used is not necessarily intelligible to all English speakers today. While Shakespeare wrote with incomparable power, much of what he wrote is incomprehensible to people who are not Shakespearean scholars. The important thing is to be selective in quoting him.
Appointment of US Judges
Justice Scalia’s death has set off an election-year battle in the US over his successor, whose appointment could tip the US Supreme Court to a liberal majority. During the event, Justice Scalia spoke about the appointment of judges and expressed concern about how politicised the process had become.
“You have presidents, ever since Richard Nixon, [in the] Republican [camp that] have said ‘We will appoint judges to the bench who are not judicial activists’, and then [those] in the Democratic party [who] have said just the opposite, ‘We will appoint judges to the bench who will be sure to uphold Roe v Wade’, which means judges who are surely judicial activists. That is what has happened in our country. It is the fault of the courts themselves and it will cease as soon as the courts go back to doing what they ought to do and not deciding political questions. I regret that it has become politicised but I prefer it to the alternative, which is judicial hegemony. I do not want rule by judges.”
Justice Scalia believed that political questions should be debated and decided democratically by the people and their representatives and that the court’s role within a democracy should be confined to interpreting and applying the law. In his view, judicially created rights not only threaten democracy, but also make the US Constitution less flexible.
In the wake of Justice Scalia’s death, he has been remembered as one of the most transformative and influential justices on the US Supreme Court in the last quarter-century and described by his dear friend and colleague, Ruth Bader Ginsburg, as “a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh”. We in Hong Kong were honoured by his visit and offer our condolences to his family, friends and colleagues, and all others who knew him. His death is a great loss.
* Attendees included Deemster David Doyle, QC, Deputy Governor of the Isle of Man; The Hon. Justice Kevin Paul Zervos, Judge of the Court of First Instance of the High Court; Mrs. Verina Bokhary SBS (formerly Mrs. Justice Verina Bokhary of the High Court); and Dr.Anthony Neoh, SC.
** In Reading Law: The Interpretation of Legal Texts (2012), Justice Scalia and Professor Garner succinctly explain their views on originalism on page 89, as follows:
The conclusive argument in favor of originalism, is a simple one: It is the only objective standard of interpretation even competing for acceptance. Nonoriginalism is not an interpretative theory – it is nothing more than a repudiation of originalism, leaving open the question: How does a judge determine when and how the meaning of a text has changed? To this question the nonoriginalists have no answer—or rather no answer that comes even close to being an objective test. For example, one apologist for semantic morphing states that “dynamism occurs when certain values are important enough to the statutory interpreter that they trump legislative primacy.” But what is important enough to one statutory interpreter may not be important enough to another. We know of no other nonoriginalist “test” that is not similarly mercurial. The choice is this: Give the text the meaning it bore when it was adopted, or else let every judge decide for himself what it should mean today.