Textualism, the Unknown Ideal?

In May 1997, the New York Knickerbockers basketball team was poised to reach the finals of its division in the National Basketball Association (NBA). The Knicks led the rival Miami Heat by three games to two and needed one more victory to win the best-of seven semifinal playoff series. Game six would be in New York; with their star center, Patrick Ewing, playing well, victory seemed assured for the Knicks. A fracas during game five changed the odds. During a fight under the basket between Knicks and Heat players, Ewing left the bench and paced in the middle of the court, away from the fight. Rule 12A, Section IX(c), of the NBA Rules provided: “During an altercation, all players not participating in the game must remain in the immediate vicinity of their bench. Violators will be suspended, without pay, for a minimum of one game,” commencing “prior to the start of their next game.” Applying the rule, NBA Commissioner David Stem suspended Ewing and another player for game six in New York, which the Knicks lost; two other players were suspended for game seven in Miami, which the Knicks also lost. Having lost the series, four games to three, the Knicks cried foul: the rule should not have been applied to Ewing because he did not leave the bench to join the altercation. The rule was not intended to apply to Ewing; it was not fair to apply the rule to someone who was not contributing to the fight; “we wuz robbed.” The foregoing argument, made not only by the Knicks but also in print by philosopher Ronald Dworkin and proceduralist Linda Silberman, both law professors at New York University, reflects good old-fashioned common law reasoning from a rule to a new and perhaps unanticipated fact situation. Justice Antonin Scalia’s Tanner Lectures at Princeton University, published with commentaries and response by the author as A Matter of Interpretation, say humbug to all that. Apply the rule according to its plain meaning. Do not consider the “intent” of its drafters. Unfairness is irrelevant when the rule applies as a matter of plain textual meaning. Stem did the right thing and for the right reasons. Ewing must be suspended. He and his colleagues will know better than to leave the bench during the next melee.