Academic journal article Michigan Law Review

High-Stakes Interpretation

Academic journal article Michigan Law Review

High-Stakes Interpretation

Article excerpt


"We must enforce plain and unambiguous statutory language according to its terms."2 Courts recite such maxims again and again.3 And, in run-of-the-mill cases, they pretty much do as they say. As John Manning has observed, gone are the days when courts would openly rewrite statutory language in the service of Congress's apparent policy aims.4 More still, courts (somewhat) reliably give effect to "plain" or "clear" language, ostensible (or perhaps conceivable) practical downsides notwithstanding.5 All of this suggests a new consensus that courts should prioritize Congress's specific instructions over its general policy ambitions-the reason being that those instructions are the best indication of "Congress's specific choices about the means to carry [its policy] ends into effect."6 Courts thus agree that a statute's precise contribution to the law is (at a minimum) what Congress communicates through that statute precisely-at least, that is, where what Congress communicates is "clear."7

The above story does reasonably well with ordinary cases. More worrisome is how it seems to fare when the practical stakes are raised. As different scholars have noted, courts treat statutory text as more malleable in big cases. When considering constitutional challenges, for example, courts frequently bend over backwards to avoid reading statutes in ways that would raise "serious constitutional doubts."8 The result is the adoption of what Neal Katyal and Thomas Schmidt disparage as "tortured constructions of statutes . . . bear[ing] little resemblance to laws actually passed."9 So too in cases involving nonconstitutional challenges to major statutes,10 where courts-and, in particular, Chief Justice Roberts-are routinely criticized for "ignor[ing]" statutory text outright in an effort to uphold existing implementation regimes.11

So what to make of the disparity? Is it just that courts stick to the text in low-stakes cases but are textually unbound when it matters?12 Or, only slightly more charitably, is it that courts care about text only so much, and that, at some point, practical or institutional interests simply outweigh? Something like this cynical (or semicynical) explanation is familiar, especially as the Supreme Court issues its late-Term decisions. Hence, Adrian Vermeule's remark: "We have two Supreme Courts-roughly, constrained legalism October through May, and then a free-for-all."13

More recently, a handful of scholars have offered limited justifications of the disparity, ultimately on instrumentalist grounds. Richard Re, for instance, has suggested that judges consistently adhere to "clear" text, but that, for some, "purposive and pragmatic considerations" partially determine just how clear a text needs to be to command respect.14 Re's explanation is that "when a statute's central objective is at risk or an otherwise plausible reading leads to alarming results," it only makes sense to "hold the text to a higherthan-normal standard."15 Somewhat differently, Curtis Bradley and Neil Siegel have argued in the constitutional context that whether a text is perceived as "clear" or "ambiguous" depends in part on historical practice.16 According to Bradley and Siegel, even if a text is "clear" at the time of enactment, subsequent activity to the contrary (e.g., a "[l]ong-settled and established practice" of congressional acquiescence)17 can actually render that text "ambiguous," thereby freeing courts from textual constraint.18 In support of this striking claim, Bradley and Siegel cite practical and institutional interests, claiming, for example, that crediting historical practice shows respect for coordinate branches and helps keep old texts up to date.19

Both of the justifications of the high-stakes-low-stakes disparity just mentioned are limited in that each only somewhat maps onto the highstakes-low-stakes distinction. Re's account, for example, predicts that courts will treat text more loosely if either pragmatic or purposive reasons20 cut against the otherwise "clear" meaning of the text. …

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