Federal sentencing guidelines and the Rehnquist Court: theories of statutory interpretation.

• Author: Spiro, Rebecca L.

1. INTRODUCTION

   The Rehnquist Court is possibly "the most activist Court in our history on issues of statutory interpretation."(1) Nonetheless, the Rehnquist Court consistently utilizes traditional statutory interpretation techniques, such as legislative history and Congressional reports, to assist the Court in many of its statutory construction tasks.(2) This, however, has been tempered by Justice Antonin Scalia, who vehemently opposes the use of these "traditional" interpretation tools. Justice Scalia, who favors a "textualist" approach, actively opposes using sources outside the text of a statute the Court is interpreting.(3)

   With respect to the United States Sentencing Guidelines and other federal sentence enhancement provisions, the Rehnquist Court has followed generally the "traditional" approach to statutory interpretation; however, because of the strong textualist influence on the Court, at least one recent decision interpreting a federal sentencing statute was construed from a textualist perspective.(4) This Note will analyze the Rehnquist Court's statutory interpretation jurisprudence as it applies to the United States Sentencing Guidelines and other federal sentence enhancement provisions. This Note argues that the Rehnquist Court will continue to interpret sentencing statutes utilizing "traditional" statutory interpretation techniques; however, a strong textualist influence will remain.

   Part II will discuss briefly both the "traditional" and "textualist" philosophies of statutory interpretation. Part II will also discuss the "rule of lenity," which is important in construing ambiguous criminal statutes. Part III will analyze the statutory interpretation philosophies of the various sitting Supreme Court Justices. Part IV will analyze select recent Supreme Court cases involving the interpretation of the Sentencing Guidelines and other federal sentence enhancement provisions. Finally, Part V will discuss recent federal courts of appeals decisions interpreting provisions of the Sentencing Guidelines, and will predict how the current Supreme Court will decide these cases--if, and when, they are presented before the Court.

2. PRINCIPLES OF STATUTORY INTERPRETATION AND THE RULE OF LENITY

   "Originalism"--the attempt of the judiciary to determine the meaning that the drafters of a statute intended--has been the focus of many of the statutory interpretation techniques for the past century.(5) The "intent of the legislature" evaluation is the most often cited criterion for statutory interpretation in the leading treatise on the subject.(6) There are various techniques of discerning the original intent of a statute. Generally, statutory interpretation techniques can be divided into two categories: textualism and the traditional approach.

   1. Textualism

      The "textualist" philosophy of statutory interpretation--embraced by Justice Antonin Scalia--focuses on the "plain meaning" of the language of a statute.(7) Once the court has determined a statute's plain meaning, consideration of the statute's legislative history is irrelevant.(8) Textualist philosophy holds, in the words of Justice Scalia, "[t]he text is the law, and it is the text that must be observed."(9)

      Under Justice Scalia's "new textualism," legislative history should not be used even to discern the "apparent" meaning of a statutory text.(10) Instead, a "plain meaning" approach to statutory interpretation requires a detailed examination of what the statute says, and this technique must be consistently applied.(11) One problem with the textualist approach to statutory interpretation is that often textualists will refer to outside sources, such as dictionaries, to discern the definitions of statutory terms.(12)

      In A Matter of Interpretation: Federal Courts and the Law, Justice Scalia distinguishes his "textualism" theory from "strict constructionism."(13) Justice Scalia describes strict constructionism as "a degraded form of textualism that brings the whole philosophy into disrepute."(14) Justice Scalia explains that interpreting a statute too literally, as in strict constructionism, may lead to absurd results. For example, in the 1993 decision Smith v. United States,(15) a defendant who had traded an unloaded firearm in exchange for cocaine received an enhanced sentence under a statute which required an enhanced sentence for anyone who "uses ... a firearm" in a drug transaction.(16) Justice Scalia--who dissented in Smith--argues that the phrase "uses a gun" should have fairly been interpreted to mean using a gun "for what guns are normally used for, that is, as a weapon."(17) According to Justice Scalia, "the good textualist is not a literalist."(18)

   2. The Traditional Approach

      The Supreme Court's "traditional" approach to statutory interpretation has been to consider contextual evidence--especially the statute's legislative history--as well as the statutory text itself, even when the statutory text has an apparent "plain meaning."(19) This approach is considered "traditional" because, until recent years, judicial interpretation of statutes naturally included references to outside sources--most importantly, the statute's legislative history.(20) The traditional approach to statutory construction is still utilized by a majority of today's Supreme Court.(21) Justice Stephen Breyer observed that "Blackstone himself, more than two hundred years ago, pointed out that a court need not follow the literal language of a statute where doing so would produce an absurd result."(22) A statute's legislative history includes congressional floor debates, committee reports, congressional hearing testimony, and presidential messages regarding the statute.(23) While the "traditional" approach to statutory interpretation is quite different from the "textualist" approach, both approaches seem to be concerned primarily with determining the intent of a statute's drafters.(24)

      Textualists, such as Justice Scalia, believe that there are fundamental problems with looking to outside sources for the purpose of interpreting a statute.(25) One such problem is the temptation for judges to make interpretive choices that enable them, even inadvertently, to use their own values to define a statute's meaning.(26) One textualist jurist has remarked that the use of legislative history in statutory interpretation is like "looking over a crowd and picking out your friends."(27) Another problem arises because a statute's legislative history may contain speeches or reports with "contradictory assertions by partisan legislative opponents endeavoring to have ambiguous statutory language subsequently interpreted to favor their preferred interests."(28)

   3. The Rule of Lenity

      When interpreting criminal sentencing statutes, there is one other principle of statutory interpretation that courts must keep in mind: the "rule of lenity." The rule of lenity is a rule of statutory construction which mandates that criminal statutes, when vague or ambiguous, be "strictly construed against the government or parties seeking to enforce statutory penalties and in favor of the persons on whom penalties are sought to be imposed."(29) The purpose of this rule is to provide adequate notice to defendants, to satisfy due process requirements, and to reinforce the notion that it is the duty of the legislature--and not the judiciary--to define what conduct is to be considered criminal.(30) Generally, the Rehnquist Court uses the narrow approach to the rule of lenity, despite Justice Scalia's efforts to broaden the Court's approach to lenity.(31) Proponents of the "narrow" approach to lenity tend to reserve its use only "for those situations in which a reasonable doubt persists about a statute's intended scope even after resort to `the language and structure, legislative history, and motivating policies of the statute.'"(32)

3. THE REHNQUIST COURT

   Only a few Justices are either strict traditionalists or strict textualists. Most of the Justices of the Rehnquist Court combine the two approaches to statutory interpretation.

   1. Textualists

      Justice Antonin Scalia has been referred to as the "most conspicuous critic" of the use of legislative history to interpret statutes.(33) Justice Scalia also is known as the champion of the Supreme Court's "new textualism" philosophy of statutory interpretation.(34) Since INS v. Cardoza-Fonseca,(35) a decision which came down early in his first term, Justice Scalia "has criticized the Court for relying on legislative history to confirm or rebut the apparent plain meaning of a statute in other specially concurring and dissenting opinions."(36) Justice Scalia's view is that the court should determine the plain meaning of a statute, and that once this has been determined, consideration of the statute's legislative history is irrelevant.(37) Justice Scalia's approach to interpreting legislation by the plain meaning of the statute reflects his belief in limiting judicial power, and his concern that judges may replace their own policy preferences for those of the politically-accountable legislature.(38) Moreover, some scholars argue that Justice Scalia is "often-distrustful" of the legislative power.(39) Perhaps Justice Scalia's desire to limit judicial review, coupled with his distrust of legislatures, has led to his textualist technique of statutory interpretation. Justice Scalia articulated his basic, textualist philosophy in his concurrence in Green v. Bock Laundry Machine Company,(40) where he stated:

      The meaning of terms on the statute books ought to be determined, not on the basis of which meaning can be shown to have been understood by a larger handful of the Members of Congress; but rather on the basis of which meaning is (1) most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words of the statute (not to mention the citizens subject to it), and (2) most compatible with the surrounding body of law...