The Politics of Statutory Interpretation

By Lemos, Margaret H. | Notre Dame Law Review, December 2013 | Go to article overview

The Politics of Statutory Interpretation


Lemos, Margaret H., Notre Dame Law Review


E. Methodological Indeterminacy

Finally, the claim that textualism works to constrict the scope of government regulation demands more faith in the determinacy of interpretive methodology in general, and textualism in particular, than is warranted. As the previous Part explained, the conceptual space between textualism and its competitors is thin, and growing thinner every day. Everyone agrees that interpretation should begin with text, and in many cases it will end there. (146) The most obvious practical difference between textualism and nontextualism concerns legislative history. As Scalia and Garner are quick to point out, however, legislative history will rarely be clear enough to compel a particular conclusion. (147) In short, it is hard to believe that the choice among the competing interpretive methodologies is outcome-determinate in many cases.

Empirical research, though limited, reinforces the intuition that methodology rarely drives results. For example, Daniel Farber's analysis of statutory decisions by Judges Posner (a self-described "pragmatist") and Easterbrook (a leading textualist) concluded that

   if every judge in the country took a sincere oath of allegiance to
   textualism and formalism--or to dynamic interpretation and
   pragmatism-it seems quite possible that little or no detectable
   effect would exist on the outcomes of statutory cases. (148)

As noted above, the Law and Zaring study of legislative history usage in Supreme Court opinions found that the ideological direction of the Justices' decisions was the same regardless of whether they cited legislative history, (149) and other studies of legislative history reached contradictory conclusions. (150) Still other studies, while not focused on the question of methodological choice, have revealed similar ideological voting patterns among jurists with different interpretive approaches. Justices Rehnquist and Scalia, for instance, have equally conservative voting records, (151) even though Justice Rehnquist made heavy use of legislative history and other extrinsic evidence of congressional intent in statutory cases, while Justice Scalia studiously ignores those materials. (152)

Moreover, even when judges agree about the proper approach to statutory interpretation, they often disagree about the answer to any given question. As critics long have argued, textualism--for all its emphasis on hard-edged rules of grammar and presumed usage--is remarkably indeterminate. Scalia and Garner take pains to describe textualism as an "objective" methodology, (153) but there is good reason to believe that interpreters' perception of the "ordinary" meaning of text will be influenced by personal factors that will differ from judge to judge. (154)

Scalia and Garner argue that the canons of construction can ameliorate these difficulties, making statutory interpretation "[e]asier," if not exactly "easy." (155) Yet they acknowledge that the canons are not bright-line rules but "presumptions about what an intelligently produced text conveys." (156) Moreover, the authors delight in offering examples of the canons being misapplied, suggesting that different results might obtain even among judges who agree on which of the fifty-one "valid" canons is most helpful. Making matters worse, in many cases judges will face an antecedent question of which canons to apply. "Principles of interpretation are guides to solving the puzzle of textual meaning," Scalia and Garner explain, "and as in any good mystery, different clues often point in different directions." (157) Predictably, empirical research suggests that the canons do little to constrain judicial decision making; instead, liberal Justices use canons to reach liberal decisions, and conservative Justices use canons to reach conservative decisions. (158) And in many cases, the Justices disagree about how to apply the same canons, with the majority invoking a canon in support of its conclusion and the dissent using the same canon to support the contrary argument. …

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