Our prescriptive judicial power: constitutive and entrenchment effects of historical practice in federal courts law.

Author:Young, Ernest A.
Position::P. 579-607
 
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  1. Canons of Statutory Construction

    The canons of statutory construction defer to historical practice in at least three senses. The first is that most of these rules themselves represent venerable traditions of interpretation. Abbe Gluck's recent work has investigated the fascinating and difficult question of whether methodologies of statutory construction are themselves law--so that, for instance, federal courts interpreting state statutes would be required to apply state canons of construction. (198) But whether or not that is true, there is no doubt that the canons also represent longstanding regularities of practice within the judiciary. (199) Federal courts apply the canons because previous courts have applied those canons. And the stability of the canons is thought to provide a baseline against which Congress can legislate. (200)

    The second and third ways in which the canons defer to historical practice turn on the nature of the canon in question. The statutory interpretation literature generally divides rules of interpretation into two classes: descriptive canons, which embody judgments about how the enacting legislature most likely would have preferred to resolve ambiguities that arise within a statute; and normative canons, which implement other values that the legislature may or may not share. (201) Descriptive canons generally seek to assess legislative preferences by reference to regularities in past legislative practice--the judgment, for example, that when the legislature passes a new statute, it generally does not mean to disrupt other aspects of the law unless it specifically says that it does. (202) These canons thus embody deference to past legislative practice.

    Normative canons, on the other hand, are problematic precisely because they so often fly in the face of likely legislative preference. (203) The rule of lenity, for example, holds that "when there are two rational readings of a criminal statute, one harsher than the other, we are to choose the harsher only when Congress has spoken in clear and definite language." (204) This approach cannot, to put it mildly, plausibly rest on a judgment that legislators generally look out for and mean to protect the interests of criminal defendants; rather, it is traditionally justified as protecting due process values of fair notice. (205) As the rule of lenity suggests, sometimes normative canons trace directly to constitutional principles. Often, however, the values protected are more diffuse. The rule disfavoring repeals of preexisting law by implication from a new statute, (206) for example, is hard to ground in any specific constitutional principle.

    David Shapiro has demonstrated, however, that canons like the one against implied repeals serve a broader function of maintaining continuity and coherence in the law. For Professor Shapiro, the most important interpretive canons "are those that aid in reading statutes against the entire background of existing customs, practices, rights, and obligations--in other words, those that emphasize the importance of not changing existing understandings any more than is needed to implement the statutory objective." (207) This view of the canons takes in those rules of construction, like the rule of lenity or the presumption against preemption, (208) that point to specific constitutional principles, because those canons harmonize new laws with those principles without forcing an evaluation of actual constitutional conflict. (209) But as the rule against implied repeals suggests, Shapiro's notion of coherence also includes integration with the vast mass of preexisting subconstitutional law. (210) The canons respect the fact that subconstitutional law often plays a critical role in constituting our institutions, so that a repeal of a preexisting statute, regulation, or common law doctrine may be just as disruptive as a statute that undermines some constitutional value. (211)

    Professor Shapiro's notion of statutory construction as an instrument of continuity with past practice is nowhere more apparent than with respect to statutes construing the authority of the federal courts. In Murdock v. City of Memphis, the Supreme Court construed an amendment to the statutory section prescribing the Court's jurisdiction over appeals from the state courts to permit only review of federal questions, not any state law issues that might also be necessary to resolve the entire dispute. (212) It did so notwithstanding a recent amendment that arguably broadened the Court's jurisdiction, noting that if it were Congress's intent to "revers[e] the policy of the government from its foundation in one of the most important subjects on which [Congress] could act, it is reasonably to be expected that Congress would use plain, unmistakable language in giving expression to such intention." (213)

    A different result in Murdock would have disrupted the established relationship between state and federal law. As Martha Field has explained, if the United States Supreme Court could substitute its own view of state law for that of the highest state court, "it would not be possible to identify any body of law as 'state law.' It is thus because of Murdock that the whole concept of state law as distinct from federal law is a meaningful one." (214) While Murdock purported only to construe the Supreme Court's jurisdictional statute, it is a profoundly constitutive decision; it is, as Professor Field observes, "such a fundamental part of our way of thinking about the boundary between state and federal power that many of our suppositions, constitutional and otherwise, are built upon it." (215) The Court's construction of the statutory amendment was thus predicated on the need to ensure continuity with this broader web of past (and ongoing) practices.

    Likewise, the Court's jurisdiction-stripping precedents--which consistently construe jurisdictional statutes in such a way as to minimize encroachments on the longstanding scope of federal jurisdiction--demonstrate the strength of the continuity impulse even in the teeth of aggressive new statutory language. (216) In INS v. St. Cyr, for example, the Court confronted a statutory text that seemed unequivocally to deprive federal courts of jurisdiction to review deportation orders. (217) The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) provided that "[notwithstanding any other provision of law ... no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed" certain enumerated criminal offenses. (218) Nonetheless, the Court found that this provision was not sufficiently clear to proscribe review by writ of habeas corpus: "[T]o conclude that the writ is no longer available in this context would represent a departure from historical practice in immigration law," the Court said, noting that "[t]he writ of habeas corpus has always been available to review the legality of Executive detention." (219) Moreover, the Court's prior precedents had demanded explicit textual references to habeas corpus in order to foreclose that remedy--a reference that, for all its aggressive language, the IIRIRA provision failed to include. (220)

    Amanda Tyler has explained that St. Cyr and similar cases rely on "a combination of the canon against implied repeals and a clear statement rule protecting structural harmony, as well as a heavy dose of stare decisis--namely, continuing and strong reliance on the model set forth in Yerger." (221) One might also think of the Court's requirement of a super-strong clear statement in order to cut off federal jurisdiction as embodying a constitutional norm against jurisdiction stripping, albeit one defeasible by Congress if it acts with sufficient clarity. (222) These two views are not necessarily in tension. Hard constitutional limits on jurisdiction-stripping are hard to identify, (223) and the strongest arguments against such measures will generally be that they fly in the face of centuries of institutional practice concerning the relationship between Congress, the federal courts, and the courts of the states. (224) The canons of construction, in Professor Shapiro's model, exist primarily as a means for ensuring that new legislation does not unduly disrupt such practices. (225) What cases like St. Cyr illustrate most vividly is that the canons may be employed to enforce such continuity even in the teeth of what Congress almost surely intends. (226)

    Of course, not everyone accepts Professor Shapiro's view of statutory construction as a means primarily of maintaining continuity with the past. As Professor Tyler points out,

    [P]roponents of an engineering vision of courts in the realm of statutory interpretation generally contend for an interpretive approach by which courts "update" the legislature's work and absolve that body of the need to police judicial constructions that may no longer remain in keeping with prevailing political or social norms. (227) William Eskridge thus argues that statutes "should--like the Constitution and the common law--be interpreted 'dynamically,' that is, in light of their present societal, political, and legal context." (228)

    But as Professor Eskridge's invocation of the common law suggests, even "dynamic" takes on statutory interpretation are not fundamentally inconsistent with an emphasis on continuity with past practice. In Burke's thought, organic growth is the flipside of prescriptive authority. For Burke, "the idea of inheritance furnishes a sure principle of conservation, and a sure principle of transmission; without at all excluding a principle of improvement." (229) In Swift v. Tyson, for example, Justice Story construed the Rules of Decision Act to be consistent with preexisting practice--in both America and elsewhere--extracting a general body of commercial law principles from the customs of merchants. (230) Maintaining continuity with that longstanding practice...

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