On viewing the courts as junior partners of Congress in statutory interpretation cases: an essay celebrating the scholarship of Daniel J. Meltzer.

• Author: Fallon, Richard H., Jr.
• Position: Special Issue on the Federal Courts

Dan Meltzer liked to tell the story of an economist who, upon being reminded that many non-profit institutions thrive as the result of the labors of volunteers and employees who work at below-market rates, scoffed: "Yes, I know it works in practice, but does it work in theory?" Dan liked the story because it expressed his bemusement at academics who invert what he regarded as the proper relationship between theory and practice. Dan looked askance at purportedly positive academic theories that fail to attend sufficiently to how people actually behave. He also believed with quiet passion that the ultimate test of normative legal theories should lie in whether, if implemented, they would produce better results than current regimes--not under imagined ideal conditions, but in actual practice.

Although Dan's practical orientation made him wary of abstract methodological argumentation, he took up the cudgels of theoretical debate to defend his views about statutory interpretation. Characteristically, Dan expressed his views in articles of carefully limited scope. Some of his broader pronouncements came in a piece that he and I co-authored entitled Federal Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror. (1) In it, we argued that the Supreme Court has appropriately adapted its interpretation of longstanding jurisdictional statutes in light of evolving understandings of the scope, and especially the geographic reach, of substantive constitutional rights. (2) Using the habeas corpus statutes as an illustration, our article defended a "common law model" in which courts play the role of "junior partners" (3) of Congress in interpreting statutory language to operate sensibly and justly in circumstances that its authors and legislative supporters likely did not foresee. (4) With history largely on our side, (5) Dan joined me in wanting courts to continue an approach that we thought had long worked well, albeit of course not perfectly, in practice. (6)

Our arguments concerning interpretive methodology in Federal Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror substantially echoed Dan's considered views as expressed elsewhere. Five years earlier, in The Supreme Court's Judicial Passivity, (7) Dan had criticized a set of cases in which the Court "sound[ed] the theme that ... Congress has primary, if not exclusive, responsibility for fleshing out the operation of schemes of federal regulation." (8) If followed consistently, he argued, the approach of those cases "would deprive the polity of an immeasurably important source of lawmaking authority [that courts have traditionally exercised], would impose unrealistic demands on the federal legislative process, and would give rise to needless injustices in routine disputes." (9) In Dan's last published article, Preemption and Textualism, (10) he examined the specific challenges that courts confront in preemption cases, in which one party argues that a federal regulatory statute, although without saying so expressly, has impliedly preempted or nullified otherwise applicable state regulatory requirements. In this piece, Dan defended "purposive" statutory interpretation, in which courts ask whether the continued enforcement of state regulations would substantially impede the realization of federal statutes' purposes. (11) He regarded purpose-based interpretation as necessary to "the task of fashioning a workable legal system," especially but not exclusively in preemption disputes. (12)

Dan's opponents in debates about statutory interpretations were "textualists," formalists, and proponents of an "agency model" who maintain--often for theoretical reasons--that courts should understand their role in interpreting statutes as that of the legislature's "faithful agents" in a narrow sense of that term. On this view, courts typically should adhere closely to the language that Congress has chosen, and they should hesitate to ascribe purposes to the legislature beyond those minimally necessary to render its choice of language intelligible. (13) Adherents of the approaches with which Dan took issue would acknowledge that Congress's chosen language can sometimes require courts to exercise independent judgment. (14) If, for example, a statute makes it unlawful to drive at an "unreasonable" rate of speed, courts will need to decide what is unreasonable under particular circumstances. The nub of disagreement between Dan and his textualist adversaries involved what he called "the enduring importance ... of purposive interpretation by an engaged judiciary." (15) Although the difference can sometimes reduce to one of mood or degree--as I shall explain below--textualists maintain that if a statute's language, as it would have been understood by a reasonable person at the time of its enactment, most naturally appears either to apply or not to apply to the facts of a case, then courts, as faithful agents, should execute their instructions as written, without inquiring deeply into the purposes that the language was meant to serve. (16) On this view, moreover, courts should not assume that Congress would have wanted to accord them interpretive discretion or to invite their exercise of practical judgment in light of their appraisal of statutory goals. (17)

In contrast, Dan maintained that courts should interpret statutory language on the assumption that Congress would have meant to enlist the judiciary as junior partners in developing a just and workable body of law. (18) In his view, courts were "junior" partners rather than Congress's co-equals in statutory interpretation cases because Congress's language and policy aims (as reconstructed by the judiciary) establish the outer limit of the judicial function. The judicial role is to interpret and implement the language that Congress has adopted, not to formulate a policy agenda. Indeed, there is even a sense in which courts are appropriately characterized as the faithful agents of Congress: they must enforce decisions that Congress has genuinely made. (19) Nevertheless, the characterization of courts as junior partners rather than mere agents implies that they should regard themselves as trusted rather than distrusted agents, with some latitude to look beyond the letter of statutory language, especially when confronting cases of a kind that Congress likely did not foresee at the time of a statute's enactment. (20) In such cases, courts should regard themselves as entrusted to assume--absent evidence to the contrary--that Congress would have intended statutory language to be interpreted and applied in light of good sense, pertinent constitutional values, reason, and experience. These, I acknowledge, are vague and controversial terms. Wisely, Dan sought to elucidate the limits of judicial power in interpreting federal statutes more by example than by articulation of bright-line rules.

As textualism and the faithful-agency view have emerged in judicial opinions and the surrounding literature, they reflect the conjunction of several premises. (21) First, the separation of powers and democratic theory demand that the courts' lawmaking role should be subordinated as much as possible to that of the legislature. (22) Second, the legislature of which courts are the agents is "a 'they,' not an 'it,'" (23) who frequently struggle to find compromises, often including unprincipled compromises, that can command the allegiance of a majority. (24) It is, accordingly, a mistake to view legislation, or to interpret it as if it should be viewed, as the effort of a rationally united majority to achieve a coherent, reasonable purpose or set of purposes that courts should seek to advance. To the contrary, laws are better viewed as deals among often antagonistic legislative factions. (25) Third, the language of a statute represents the singularly authoritative embodiment of the deal that Congress struck. (26) Accordingly, courts should interpret legislation to preserve the bargain that its language most plausibly reveals, even when the results in a particular case seem highly regrettable. In advocating this approach, proponents sometimes add, as a fourth argument, that it would help to empower Congress to craft the deals it wants by giving assurance that courts will apply statutory language as written. (27)

On the surface, Dan's arguments against textualism and narrow versions of other faithful-agency theories of statutory interpretation were largely pragmatic. (28) He emphasized that Congress writes statutory language with limited time and foresight. (29) Especially when courts confront situations that Congress had almost surely not had in view, Dan thought that textualism would frequently lead to bad results. He also maintained that his preferred approach, if correctly practiced, would assist and empower Congress, not promote judicial usurpation of properly legislative functions. (30)

In this Essay, written in tribute to Dan, I shall attempt to explicate his views regarding statutory interpretation in general, thematic terms. In doing so, I shall register my agreement with virtually all of Dan's conclusions and frequently echo his practically minded arguments in support of them. But I shall also advance arguments--with which I cannot be entirely sure he would have agreed--that seek to show that his position reflected theoretical insights about how language works, not only in law, but also more generally in life.

By seeking simultaneously to defend Dan's views and to build on them, this Essay may sometimes blur the line between explication and original argumentation. Its methodology is, accordingly, risky, but I do not believe it is misplaced. As I hope will become clear, my blending of descriptive and interpretive claims with normative argumentation in some ways parallels the approach that Dan thought courts should take in acting as Congress's junior partners.

1. THE CONCEPTUAL FOUNDATIONS OF THE COURTS' JUNIOR...