Change, Creation, and Unpredictability in Statutory Interpretation: Interpretive Canon Use in the Roberts Court's First Decade

By Mendelson, Nina A. | Michigan Law Review, October 2018 | Go to article overview

Change, Creation, and Unpredictability in Statutory Interpretation: Interpretive Canon Use in the Roberts Court's First Decade


Mendelson, Nina A., Michigan Law Review


Introduction

The lion's share of Roberts Court majority opinions engages at least one interpretive canon in resolving a question of statutory meaning.1 Growing canon use is a component of a distinct rise in so-called textualist methods of statutory interpretation.2

Justice Kagan's suggestion that judges are "staring at the words on the page"3 captures a current consensus within the federal judiciary-a victory for the textualists-that statutory text comes first. When text straightforwardly suffices to answer a question, no further investigation is needed, and evidence about congressional purpose will not override it.4 Even ambiguous or unclear text can bound the range of permissible interpretations that interpretive strategies such as legislative purpose analysis might otherwise open up.5

Yet statutory text is often inadequate to the interpretive task. The text may be silent, indeterminate, ambiguous, or even conflicting on contested legal issues. As Justice Breyer has explained, the judge is then compelled to go beyond the words in carrying out the legislature's will, "for the words have simply ceased to provide univocal guidance to decide the case at hand."6

For decades, the Court turned to legislative history as evidence of congressional intent, but this drew blistering criticism from textualists, who argued that legislative history is "not the law" and is subject to manipulation by both judges and legislators.7 This prompted a significant decline in, though not abandonment of, legislative history use.8

Perhaps to supplement a depleted arsenal, the Court has deployed a stockpile of canons to aid the interpretive endeavor.9 Interpretive canon use, along with dictionary use, is now seen as intrinsic to textualist interpretive modes. The Roberts Court has invoked so-called textual canons, including grammatical rules and canons of deliberateness, such as the rule against surplusage.10 The Court has also applied substantive canons, such as the presumption against preemption of state law and canons that call for consultation of the common law, agency interpretations, and other legal sources.11 Canon use now seems deeply embedded in the Court's interpretive practices. Indeed, every justice in the Roberts Court engaged at least one canon in the majority of statutory interpretation opinions he or she authored in the Roberts Court's first decade, this Article's study period.12

But canons, like legislative history, also reside outside the enacted statutory text, and they are judicial creations, raising further concerns about their consistency with legislative supremacy. Canon defenders have argued that interpretive canons are nonetheless acceptable because they approximate Congress's drafting practices and likely preferences.13 Canon critics have questioned whether this is plausible for many canons. Professors Abbe Gluck and Lisa Bressman raised a substantial challenge to that defense in an empirical study of congressional staff; they found staff were often unfamiliar with canons or rejected their premises outright.14 Although they found limited evidence for some canons, Gluck and Bressman concluded that their find ings undermine any universal justification of canons on the ground that they approximate congressional preferences.15

Canon defenders have also advanced second-order reasons. In essence, the second-order defense of canon use is that canons, whatever their content, represent clear interpretive rules that can coordinate and constrain judicial decisionmaking and render interpretation more predictable.16 Interpretive stability and judicial constraint are independently valuable, so the argument goes.

Justice Gorsuch recently raised such an optimistic defense: "[W]hen judges pull from the same toolbox . . . we confine the range of possible outcomes and provide a remarkably stable and predictable set of rules ... ."17 The late Justice Scalia's 2012 book with Bryan Garner, Reading Law, catalogs and makes similar express claims for canons, arguing that they "will narrow the range of acceptable judicial decision-making and. …

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