5.2 “Faithful servant” through an employment-law lens

(Second in The interpretation of statutes and the denial of judges' power series.)

In the preceding entry I extrapolated purposivism to show it stands for more responsiveness to the legislature, textualism, less. The next analogy shows that purposivism conceives of a relationship more like an employee (Servant) relationship, whereas textualists create a relationship between courts and Congress like that between an employer (Buyer) and independent contractor (Contractor). The parallel suggests conclusions about the relations between courts and Congress each doctrine envisions.

By Servant relationship I will mean the status of an employee at will, the status enjoyed (literally, not) by the great majority of American workers. An employment-at-will relationship exists whenever an express employment contract doesn't, creating a status allowing Servant's discharge "for good reason, bad reason, or no reason at all." As the "at-will" formula implies, Master expects Servant will work his will. Having the power to demand Servant do as Master wishes, even if this seems to require reading Master's mind, Master wants to realize his actual purposes, even if they contradict what he inscribes or verbalizes. Master gives Servant orders as means to ends, and, while purposes are subject to sublimation, the substitution of a wish's expressed misdescription for the wish itself undermines its fulfillment. If Master tells Servant to take out the garbage, Master doesn't expect Servant, Jonathan, to arrange a date with Master's competitor, Jacqueline, whom Master, in a competitive rage, had yesterday defined as "garbage." For the employer to delight in obedience to his words when they contradict his will would be perverse when generalized. Master may yet fire a Servant who goes too far beyond Master's words, even when Servant satisfies Master's wishes. Master wants to avoid the risks attending a speculating Servant, so Master will impose a more textualist regime on Servant when Master distrusts Servant's judgment. Master's "textualism" never comes close to wanting Servant to ignore Master's purposes.

The relationship between agent, text, and the principal's purpose differs when Contractor accepts a job. Buyer pays Contractor to satisfy a narrow intention expressed in a contract, often written, its interpretation textualist. Contractor doesn't have to gratify the wishes of Buyer; he need only satisfy the contract's terms. Why then does an employer choose to be Buyer? In the prototype situation, the employer lacks the specialized knowledge to supervise a Servant, to whom he would anyway have to grant the autonomy of a Contractor. The Buyer - Contractor relationship is tailored to high employee autonomy because it compensates employer for reduced control by shifting various duties to Contractor. A homeowner can sue a building contractor but not a Servant for misfeasance, and third parties can sue the homeowner as Master, when they cannot sue homeowner Buyer. The pattern shows that the employer prefers the Master-Servant relationship because employer charges for forgoing it by requiring Buyer to assume duties formerly employer's.

A textualist court stands to the legislature like Contractor to Buyer, the text of the statute replacing the job-contract's terms. This is a more powerful position than occupied by a purposivist court, which mimics a Servant by making the legislature Master.

5.1 Contradictions of the American judiciary

Since a powerful life-appointed federal judiciary ill accords with democratic ideology, American judges have always understated their own power. (Eskridge & Frickey, Statutory Interpretation as Practical Reasoning (1990) 42 Stan. L. Rev. 321, 324 ["counter-majoritarian anxiety"].) Ideology mismatches reality so badly it drives the interpretive school that would most enhance judicial power to portray the school's proposals as Congress's liberation from judicial fetters. These textualists propose that the judiciary should become Congress's "faithful servant" by ignoring Congress's purposes. (Marmor, The Immorality of Textualism (2005) 38 Loy. L.A. L. Rev. 2063, 65.)

Purposivists and textualists agree that the meaning of legislation is set when enacted, but logically the convention is optional. (For definitions, see Eskridge & Frickey, Statutory Interpretation as Practical Reasoning, supra, 42 Stan. L. Rev. at p. 324.) What Congress intended years ago when it passed certain laws isn't transparently pivotal to determining real legislative purpose, only the purpose of enacting the particular legislation. True, a legislature has power to enact legislation only if it can count on the courts enforcing its intent as of the enactment date. The reliable-enforcement precondition for the legislature's authority rebuts using preceding indicators of legislative opinion to contradict the legislature's resolve; it doesn't rebut using indicators of Congress's subsequently changed views to revise how the courts understand legislation previously enacted. This envisioned system takes purposivism to limit by focusing on the legislature's present views and purposes and disregarding an enactment's incongruence with legislative purposes formed after enactment, creating a far more purposivist system than Justices Marshall, Brennan, or Stevens would consider advocating: whenever a significant change occurs in the outlook of legislators, the Congressional Record records it, and the courts must adjust their legal interpretations. The scheme forces courts to track the current legislative stance on the law. If the legislature had defined "discrimination" for the purposes of the Civil Rights Act as distinct procedures favoring nonminorities, and election of new legislators or other developments caused the legislators to decide that "discrimination" in that statutory context is better defined as different outcomes for nonminorities, as soon as Congress publishes the record, the courts must follow.

Since this is only a thought experiment to depict a judiciary more completely the legislature's servant, other arguments against the relationship envisioned—notice and fairness to individuals—can be cabined as distractions. One argument against making the courts ultraresponsive to the legislature—the notice issue—is that citizens lack sufficient notice when the legal meanings fluctuate. We have long accepted that citizens look to legal professionals to interpret the law, but when some unnoticed Congressional activity causes the law to change, even the most informed attorneys might not register the changes affecting their clients. Another impracticality is properly insulating the courts legislative pressure applying the law equitably to different persons. I assume only for the sake of the thought experiment these objections can be met.

If you take care to avoid distraction by notice and fairness issues, you might agree constructing this extreme case helps show that ultrapurposivism is ultrademocratic; hence, ordinary purposivism is more democratic and legislative supremacist than textualism. Textualists get away with their claims because the narrow difference between extant purposivism and textualism doesn't make the real contrast immediately obvious. Extreme purposivism shows that if the legislature is truly supreme and the judiciary its servant, the judiciary serves according to the legislature's will, not the terms of its enactments.

Next in series: More arguments purposivists act more like servants of the legislature than do textualists