DRAFT Please do not quote or cite without written permission Justice Scalia's first priority over the years has been to limit and simplify. The Courts choice has been to tailor deference to variety.. Our respective choices are repeated today Yet while the Court as whole continues, perhaps unsurprisingly, to deploy the familiar methods of the common law - insisting, notably, on the force of precedent as well as the possibility of case by case development of doctrine- its members also join with some regularity in expressing doubts, as in sandova about federal courts fashioning law in the common law way. Indeed, modern times have brought greater scholarly and judicial ferment about the judicial function than perhaps we have seen since the New Deal The Court s work and the commentators engender the sense of a virtual revolution, whether the subject is respect for congressional judgment about social fact, debates over the proper approach to statutory nterpretation,or-my subject tonight- suggestions that the courts of state judicial systems and the federal tribunals of the national judiciary fundamentally differ in their nature. America has gone through more thanone cycle of judicial activism and retreat-the activism sometimes in service ofliberal principles and sometimes conservative ones; the retreats often under the banner of expressed appreciation for the appropriate limits on judicial function. We are again, at least ostensibly, in a retreat phase. Yet thi retreat is marked by a quarrelsomeness in relation to Congress, a skepticism about its instructions, that should signal to us that not only judicial modesty is in the air. Professions abound that the courts should act as faithful servants of Congress in interpreting statutes, for example, yet one overhearing the conversations between master and servant- seeing how they bicker, how uninterested the servant appears to be in the context within which its master issued its instructions, how insistent it is on deploying its own sense of syntax-could wonder just how "faithful"is the service being rendered. While strong-minded judges and debates over the propriety of judicial activism are hardly a new phenomenon, all courts today - state as well as federal- face three linked challenges that put our common-law suppositions about judicial process under considerable stress. These are the increasingly 3 A. Christopher Bryant Timothy J. Simeone, Remanding to Congress: The Supreme Court's New"On the Record" Constitutional Review of Federal Statutes, 86 Cornell L Rev. 328 (2001); Neal Devins, Congressional Factfinding and the Scope of Judicial Review: A Preliminary Analysis, 50 Duke L J 1169(2001), William W. Buzbee Robert A Shapiro, Legislative Record Review, 54 Stan. L Rev. 87(2001); Larry Kramer, Foreword: We the Court, 115 Harv. L Rev. 1(Nov 2001), all discussing cases such as City of Boerne v. Flores, 521 U.S.507(199)and United States v. Morrison, 529 U.S. 598(2000). [add others] ning/Eskridge debates in Colum. L Re I am not the only commentator to find in the current phase a remarkable activism, in the sense that the Court is essentially dismissive of settled expectations, either of the legal community or of the legislature, in pursuing its own vision of the proper state of the law. Kramer, Aleinikoff Shaw, Strauss(SupCtRev ), others? >o 6 francis LieberLegal and Political Hermeneutics 28-31(1839); Peter L. Strauss, the Common Law and Statutes U Colo. L Rev. 225(1999); Stevens in WUVH, 449 U. S.83(1991); Reynolds v. Martin, 985 F/2d 470, 475n. 2(1993)DRAFT Please do not quote or cite without written permission 3 A. Christopher Bryant & Timothy J. Simeone, Remanding to Congress: The Supreme Court’s New “On the Record” Constitutional Review of Federal Statutes, 86 Cornell L.Rev. 328 (2001); Neal Devins, Congressional Factfinding and the Scope of Judicial Review: A Preliminary Analysis, 50 Duke L.J. 1169 (2001), William W. Buzbee & Robert A. Shapiro, Legislative Record Review, 54 Stan. L.Rev.87 (2001); Larry Kramer, Foreword: We the Court , 115 Harv.L.Rev. 1 (Nov. 2001), all discussing cases such as City of Boerne v. Flores, 521 U.S. 507 (199 ) and United States v. Morrison, 529 U.S. 598 (2000). [add others] 4 Manning/Eskridge debates in Colum.L.Rev. 5 I am not the only commentator to find in the current phase a remarkable activism, in the sense that the Court is essentially dismissive of settled expectations, either of the legal community or of the legislature, in pursuing its own vision of the proper state of the law. Kramer, Aleinikoff & Shaw, Strauss (SupCtRev), others? 6 Francis LieberLegal and Political Hermeneutics 28-31 (1839); Peter L. Strauss, the Common Law and Statutes, 70 U.Colo.L.Rev. 225 (1999); Stevens in WUVH, 449 U.S. 83 (1991); Reynolds v. Martin, 985 F/2d 470, 475 n. 2 (1993). -3- “Justice Scalia’s first priority overthe years has beento limit and simplify. The Court’s choice has been to tailor deference to variety. ... Our respective choices are repeated today.” Yet while the Court as whole continues, perhaps unsurprisingly, to deploythe familiar methods of the common law – insisting, notably, on the force of precedent as well as the possibility of case by case development ofdoctrine – itsmembers also joinwithsome regularityinexpressingdoubts, asinSandoval, about federal courts fashioning law in the common law way. Indeed, modern times have brought greater scholarly and judicial ferment about the judicial function than perhaps we have seen since the New Deal. The Court’s work and the commentators engender the sense of a virtual revolution, whether the subject is respect for congressional judgment about social fact,3 debates over the proper approach to statutory interpretation,4 or – my subject tonight – suggestions that the courts of state judicial systems and the “federal tribunals” of the nationaljudiciary fundamentally differ in their nature. America has gone through more thanone cycle of judicial activism and retreat – the activismsometimesinservice ofliberalprinciples and sometimes conservative ones; the retreats often under the banner of expressed appreciation for the appropriate limits on judicial function. We are again, at least ostensibly,5 in a retreat phase. Yet this retreat is marked by a quarrelsomeness in relation to Congress, a skepticism about its instructions, that should signal to us that not only judicialmodestyisinthe air. Professions abound that the courts should act as faithful servants ofCongressininterpreting statutes, for example; yet one overhearing the conversations between master and servant – seeing how they bicker, how uninterested the servant appears to be in the context within which its master issued its instructions, how insistent it is on deploying its own sense of syntax – could wonder just how “faithful” is the service being rendered.6 While strong-minded judges and debates over the propriety of judicial activism are hardly a new phenomenon, all courts today – state as well as federal – face three linked challenges that put our common-law suppositions about judicial process under considerable stress. These are the increasingly