Author:Doerfler, Ryan D.

Courts look at text differently in high-stakes cases. Statutory language that would otherwise be "unambiguous" suddenly becomes "less than clear." This, in turn, frees up courts to sidestep constitutional conflicts, avoid dramatic policy changes, and, more generally, get around undesirable outcomes. The standard account of this behavior is that courts' failure to recognize "clear" or "unambiguous" meanings in such cases is motivated or disingenuous, and, at best, justified on instrumentalist grounds.

This Article challenges that account. It argues instead that, as a purely epistemic matter, it is more difficult to "know" what a text means--and, hence, more difficult to regard that text as "clear" or "unambiguous"--when the practical stakes are raised. For that reason, this Article insists, it is entirely rational for courts to be more cautious when interpreting text in high-stakes cases than they would be if the stakes were low. Drawing on contemporary work in philosophy of language and epistemology, this Article grounds its argument in the observation that ordinary speakers' willingness to attribute "knowledge" or "clarity" decreases as the practical stakes increase. And while the technical explanations of this phenomenon vary, they all reflect a basic insight: that one needs greater epistemic justification to act on some premise the higher the practical stakes.

To illustrate, this Article applies the above insight to various interpretive settings. Considering judicial review, for example, this Article explains that it makes good epistemic sense for a court to wait until it is really sure that a statute means what it thinks it means before taking the extraordinary step of invalidating that statute as unconstitutional. Similarly, this Article urges that it is just sound epistemic practice for a court is to construe a statute in a way that would unsettle an existing implementation regime only if it is especially well justified in its reading of the statutory text--that is, only if it really knows that its reading is correct.

This Article thus offers at least a partial justification of courts' seemingly loose treatment of statutory text when the practical stakes are raised. And it does so, in contrast to prior scholarly efforts, by appeal to reasons that both formalists and instrumentalists can accept.

Table of Contents Introduction I. Prior Explanations A. cynicism B. The New Holy Trinity C. Constructed Constraint II. High/Low Stakes A. Motivating Examples B. Technical Explanations C. Basic Insight III. Applications A. Constitutional Avoidance 1. Bond v. United States 2. Northwest Austin B. Nonconstitutional Challenges 1. King v. Burwell 2. Inclusive Communities C. Rule of Lenity D. Chevron IV. Coda: On Constitutional Interpretation . Conclusion We're all textualists now[, except in June].

--Justice Elena Kagan (1)


"We must enforce plain and unambiguous statutory language according to its terms." (2) Courts recite such maxims again and again. (3) And, in run- of-the-mill cases, they pretty much do as they say. As John Manning has observed, gone are the days when courts would openly rewrite statutory language in the service of Congress's apparent policy aims. (4) More still, courts (somewhat) reliably give effect to "plain" or "clear" language, ostensible (or perhaps conceivable) practical downsides notwithstanding. (5) All of this suggests a new consensus that courts should prioritize Congress's specific instructions over its general policy ambitions--the reason being that those instructions are the best indication of "Congress's specific choices about the means to carry [its policy] ends into effect." (6) Courts thus agree that a statute's precise contribution to the law is (at a minimum) what Congress communicates through that statute precisely--at least, that is, where what Congress communicates is "clear." (7)

The above story does reasonably well with ordinary cases. More worrisome is how it seems to fare when the practical stakes are raised. As different scholars have noted, courts treat statutory text as more malleable in big cases. When considering constitutional challenges, for example, courts frequently bend over backwards to avoid reading statutes in ways that would raise "serious constitutional doubts." (8) The result is the adoption of what Neal Katyal and Thomas Schmidt disparage as "tortured constructions of statutes ... bearing] little resemblance to laws actually passed." (9) So too in cases involving nonconstitutional challenges to major statutes, (10) where courts--and, in particular, Chief Justice Roberts--are routinely criticized for "ignor[ing]" statutory text outright in an effort to uphold existing implementation regimes. (11)

So what to make of the disparity? Is it just that courts stick to the text in low-stakes cases but are textually unbound when it matters? (12) Or, only slightly more charitably, is it that courts care about text only so much, and that, at some point, practical or institutional interests simply outweigh? Something like this cynical (or semicynical) explanation is familiar, especially as the Supreme Court issues its late-Term decisions. Hence, Adrian Vermeule's remark: "We have two Supreme Courts--roughly, constrained legalism October through May, and then a free-for-all." (13)

More recently, a handful of scholars have offered limited justifications of the disparity, ultimately on instrumentalist grounds. Richard Re, for instance, has suggested that judges consistently adhere to "clear" text, but that, for some, "purposive and pragmatic considerations" partially determine just how clear a text needs to be to command respect. (14) Re's explanation is that "when a statute's central objective is at risk or an otherwise plausible reading leads to alarming results," it only makes sense to "hold the text to a higher- than-normal standard." (15) Somewhat differently, Curtis Bradley and Neil Siegel have argued in the constitutional context that whether a text is perceived as "clear" or "ambiguous" depends in part on historical practice. (16) According to Bradley and Siegel, even if a text is "clear" at the time of enactment, subsequent activity to the contrary (e.g., a "[l]ong-settled and established practice" of congressional acquiescence) (17) can actually render that text "ambiguous," thereby freeing courts from textual constraint. (18) In support of this striking claim, Bradley and Siegel cite practical and institutional interests, claiming, for example, that crediting historical practice shows respect for coordinate branches and helps keep old texts up to date. (19)

Both of the justifications of the high-stakes--low-stakes disparity just mentioned are limited in that each only somewhat maps onto the high-stakes--low- stakes distinction. Re's account, for example, predicts that courts will treat text more loosely if either pragmatic or purposive reasons (20) cut against the otherwise "clear" meaning of the text. (21) Therefore, that account would have it that, even in low-stakes cases, the presence of purposive reasons will result in more casual reading--a prediction that runs contrary to the pattern of judicial behavior observed at the outset. (22) Bradley and Siegel's account, by contrast, applies principally, in high-stakes cases: the possible invalidation of a long-established practice will, after all, typically render a case high stakes. (23) At the same time, the universe of high-stakes cases is plainly much larger than that of cases involving challenges to long-established practice (e.g., major cases involving recently enacted statutes or regulations), making that account incomplete. (24)

More fundamentally, though, both Re's and Bradley and Siegel's accounts require that one accept the sort of instrumentalist reasoning that most proponents of careful statutory reading reject. Re's suggestion, for instance, that some texts be held to a "higher-than-normal standard" sets off alarm bells for those for whom the role of a court when interpreting a statute is to determine what Congress meant by the words that it used. (25) Similarly, Bradley and Siegel's suggestion that texts need to be kept up to date seems to run contrary to what Larry Solum calls the "fixation thesis," the claim that the meaning of a text is fixed at the time of enactment, a basic assumption of most any version of textualism. (26)

As an alternative, this Article contends that one can plausibly make sense of how courts handle text in high-stakes cases by appeal to epistemological considerations cognizable by formalists and instrumentalists alike. The argument is as follows: to say that the meaning of a statute is "clear" or "plain" is, in effect, to say (27) that one knows what that statute means. (28) As numerous philosophers have observed, however, ordinary speakers attribute "knowledge"--and, in turn, "clarity"--more freely or less freely depending upon the practical stakes. (29) In low-stakes situations, speakers are willing to concede that a person "knows" this or that given only a moderate level of justification. Suppose, for example, Jane has checked the train schedule, uses the train system with some regularity, and is in no particular rush; in that situation, it is plausible for Jane to say that she "knows" that the train will arrive at 7:00 a.m. as scheduled. By contrast, if the practical stakes are high, speakers require greater justification before allowing that someone "knows" that same thing, holding constant that person's evidence: if, say, Jane has the same evidence as above but absolutely cannot afford to be late, Jane's claim to "know" that the train will arrive at 7:00 a.m. is more doubtful. (30)

As this Article explains, philosophers differ in their technical explanations of the above phenomenon: some attribute it to the semantic connection between "knowledge" and action, (31) others suggest that we mean different things by "know" in different...

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