CHANGE, CREATION, AND UNPREDICTABILITY IN STATUTORY INTERPRETATION: INTERPRETIVE CANON USE IN THE ROBERTS COURT'S FIRST DECADE.

Author:Mendelson, Nina A.
 
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In resolving questions of statutory meaning, the lion's share of Roberts Court opinions considers and applies at least one interpretive canon, whether the rule against surplusage or the presumption against state law preemption. This is part of a decades-long turn toward textualist statutory interpretation in the Supreme Court. Commentators have debated how to justify canons, since they are judicially created rules that reside outside the statutory text. Earlier studies have cast substantial doubt on whether these canons can be justified as capturing congressional practices or preferences; commentators have accordingly turned toward second-order justifications, arguing that canons usefully make interpretation constrained and predictable, supplying Congress with a stable interpretive background. Based on an extensive study tracking the use of over 30 interpretive canons in the first 10 years of the Roberts Court, this Article attempts to contribute evidence to the debate over canons.

The data raise substantial questions regarding stability and predictability. Despite a long tradition of use, some canons have essentially disappeared; meanwhile, the Court has created others out of whole cloth. In addition, application is erratic. The Roberts Court Justices have declined to apply even the most widely engaged canons 20-30% or more of the time, often for difficult-to-anticipate reasons; some well-known canons, such as the rule of lenity and the presumption against preemption, were applied roughly at a 50-50 rate. The story is worse in the many cases in which multiple canons are considered. Based on these and other findings, this Article accordingly argues that predictability and stability arguments cannot supply a firm foundation for canon use. The study also reveals troubling mismatches between canons actually in use and congressional staff acceptance of canons. The Article concludes by suggesting some future directions for investigation and reform.

TABLE OF CONTENTS INTRODUCTION I. JUSTIFYING INTERPRETIVE CANONS A. Categories of Canons 1. Textual Canons 2. Substantive Canons B. The Challenges of Justifying Interpretive Canon Use II. DOCUMENTING CANON USE IN ROBERTS COURT OPINIONS: METHODOLOGY AND CAVEATS A. Methodology 1. Textual Canons 2. Substantive Canons B. Caveats III. SELECTED FINDINGS A. The Supreme Court Uses Canons Often--Especially Canons of Consistency and Deliberateness B. Some Canons Are Strong; Some Are Weak, Yielding Readily to Other Considerations; the Vast Majority of Canons Were Not Applied At Least 25% of the Time They Were Discussed C. When Opinions Use Canons to Resolve a Statutory Issue, They Typically Use More Than One Canon.. D. Canons Were Not Applied for a Wide Variety of Reasons E. The Court Has Birthed Multiple New Canons, Modified Old Ones, and Killed Some Off Altogether 1. New "No Elephants in Mouseholes" Canon 2. New Location of Codification Canon 3. New Veterans' Benefits Canon 4. New Jurisdictional Rules Canon 5. Rule of Lenity Modifications 6. Expansion of Expressio Unius Beyond the List Conte 7. Whole Session Laws Rule 8. Continued Expansion of Federalism Canons 9. Fledgling Canons IV. Implications for Stability and Predictability A. The Stable Interpretive Background Justification B. A First Cut at the Content of Individual Canons in Use CONCLUSION APPENDIX 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 surplus-age. (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 findings 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.... will curb--even reverse--the tendency of judges to imbue authoritative texts with their own policy preferences." (18) Justice Kagan commented in November 2015 that the book serves as a regular reference on the Court. (19)

These claims do not directly address the concern that the application of canons, if they do not approximate congressional practices or preferences, potentially undermines legislative supremacy. Here, canon defenders respond that canons supply a more stable interpretive background for Congress. If Congress can anticipate canon application and predict interpretive outcomes, so the argument goes, it is empowered to draft around undesirable ones, indirectly supporting legislative supremacy. (20)

Judicial reliance on canons has, however, lately drawn its own share of blistering criticism as capricious and potentially manipulative. Abbe Gluck has, for example, deemed the current iteration of the canon-heavy "formalist [interpretive] project" an outright "failure." (21) She joins retired Judge Richard Posner in criticizing judicial canon use as unpredictable, lacking any ranking or precedential approach. (22) The critique is that the sheer number and variety of canons end up actually widening judicial discretion to rule in accord with judicial policy preferences, undermining any promise of interpretive stability.

This project attempts to contribute evidence to the debate over whether canon use contributes to interpretive stability and predictability. It reports findings from a substantial empirical project on interpretive canon use in the Roberts Court. The project assesses such use in the first ten years of the Roberts Court, from October Term 2005 through October Term 2014. It is the most significant assessment of statutory interpretation in the Court to date, tracking thirty-six separate textual and substantive canons across 838 majority, concurring, and dissenting opinions that resolved contested statutory issues. The study identified instances in which a canon was applied to help resolve a contested issue, as well as instances in which the justices considered, but declined to apply, a particular canon. This project adds to the substantial analysis already conducted by Professor Anita Krishnakumar and the significant work of Professors James Brudney and Corey Ditslear in workplace and tax cases, though it differs in important respects from these studies, both by tracking more canons and in certain key findings, as discussed below...

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