The politics of statutory interpretation.

AuthorLemos, Margaret H.
PositionAntonin Scalia and Bryan A. Garner's 'Reading Law: The Interpretation of Legal Texts' - II. Conservative Outcomes E. Methodological Indeterminacy through Conclusion, with footnotes, p. 879-907

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. (159)

Consider the Court's decision in Ali v. Federal Bureau of Prisons, (160) in which the Justices split five-to-four over the application of several well-known canons to a deceptively simple sliver of statutory text. Ali concerned the scope of the Federal Tort Claims Act, which makes an exception to the federal government's waiver of sovereign immunity for any "claim arising in respect to the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or other law enforcement officer." (161) The question in the case was whether Bureau of Prisons officers fell within the exception as "other law enforcement officer[s]." The courts of appeals had divided on the issue, with six circuits holding that the exception embraces all law enforcement officers, and five circuits interpreting the clause as limited to officers performing customs or excise functions. The latter interpretation, which was adopted by the dissenters in Ali, appears to find support in the ejusdem generis canon (Scalia and Garner's Principle #32) (162) The canon instructs that "when a general term follows a specific one, the general term should be understood as a reference to subjects akin to the one with specific enumeration." (163) Thus, Justice Kennedy argued in dissent, a proper reading of the provision attributes to the last phrase ("any other law enforcement officer") (164) the discrete characteristic shared by the preceding phrases ("officer[s] of customs or excise" (165) and "assessment or collection of any tax or customs duty"). (166) Not so, explained Justice Thomas for the majority:

The phrase is disjunctive, with one specific and one general category, not ... a list of specific items separated by commas and followed by a general or collective term. The absence of a list of specific items undercuts the inference embodied in ejusdem generis that Congress remained focused on the common attribute when it used the catchall phrase. (167) The plaintiff in Ali also invoked the noscitur a sociis canon (Principle #31), (168) "according to which 'a word is known by the company it keeps.'" (169) The dissenting Justices reasoned that noscitur a sociis supported the narrower reading of the exception, (170) but again the majority disagreed. According to Justice Thomas, "although customs and excise are mentioned twice in [the exceptions clause], nothing in the overall statutory context suggests that customs and excise officers were the exclusive focus of the provision." (171)

The plaintiff's appeal to the rule against superfluities (Principle #26) (172) was similarly unavailing. The plaintiff argued that if "other law enforcement officer" includes all law enforcement officers, then the preceding reference to "any officer of customs or excise" was entirely unnecessary. Justice Kennedy made a similar argument in his dissent. (173) Again the majority disagreed. Justice Thomas's rebuttal was three-pronged: "Congress may have simply intended to remove any doubt that officers of customs or excise were included in 'law enforcement officer[s];" (174) plaintiff's preferred reading "threaten [ed] to render 'any other law enforcement officer' superfluous;" (175) and, "[i]n any event, we do not woodenly apply limiting principles every time Congress includes a specific example along with a general phrase." (176)

The disagreement among the Justices in Ali cannot be chalked up to differences in grand interpretive theory. On the contrary, Justice Kennedy's dissent begins with a paean to textualism and the canons of construction:

Statutory interpretation, from beginning to end, requires respect for the text.... To prevent textual analysis from becoming so rarefied that it departs from how a legislator most likely understood the words when he or she voted for the law, courts use certain interpretative rules to consider text within the statutory design. These canons do not demand wooden reliance and are not by themselves dispositive, but they do function as helpful guides in construing ambiguous statutory provisions. (177) Instead, the disagreement turned on how to apply the canons to a relatively straightforward text. The notion that a commitment to textualism as a methodology reliably produces any given set of results seems fanciful in the face of such internecine battles? (178)

In sum, there is nothing inherent in textualism as a theory of statutory interpretation that ensures that it will work, in any reliable and predictable way, to constrict the scope of government regulation. To be sure, in the rare cases in which methodology drives outcomes, textualism sometimes may push its adherents to conservative results; it may even tilt in that direction more often than not. But the question of textualism's conservatism must be a relative one: conservative as compared to what? It may be the case that textualism produces more conservative outcomes than an extreme form of purposivism that pursues the core goals of each statute in their broadest form while glossing over evidence of compromises and caveats. (179) It is far less clear that textualism is more conservative than an intentionalist methodology that prioritizes legislative history. (180) And it seems impossible to conclude that textualism is more conservative in its consequences than an eclectic approach that takes each case as it finds it. It bears repeating that few judges commit to any consistent approach to statutory interpretation. Interpretive methodology is seen largely as a question of individual judicial style or philosophy, and judges face neither institutional nor reputational pressures to pledge fealty to a particular approach. Most judges dabble, drawing from legislative history in one case and focusing on text and canons in the next. Given that the eclectic approach allows interpreters to pick and choose the tools that will best serve the ends of each...

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