Protean statutory interpretation in the courts of appeals.

• Author: Brudney, James J.

ABSTRACT

This Article is the first in-depth empirical and doctrinal analysis of differences in statutory interpretation between the courts of appeals and the Supreme Court. It is also among the first to anticipate how the Supreme Court's interpretive approach may shift with the passing of Justice Scalia.

We begin by identifying factors that may contribute to interpretive divergence between the two judicial levels, based on their different institutional structures and operational realities. In doing so, we discuss normative implications that may follow from the prospect of such interpretive divergence. We then examine how three circuit courts have used dictionaries and legislative history in three subject matter areas over the past decade and compare these findings in detail to the interpretive approach taken by the Roberts Court in the same three fields.

We determine that the appeals courts have followed a protean approach, adapting their usage patterns in ways that differ substantially from patterns in the Supreme Court. Court of appeals judges use dictionaries far less relative to legislative history than do the Justices; we found no semblance of the distinctive dictionary culture that is prevalent on the Roberts Court. In addition, the relative frequency of dictionary usage between the two court levels varies considerably depending on the subject area and the type of dictionary (general or legal). With respect to relative frequency for legislative history, the Supreme Court, far more than the circuit courts, invokes the record of changes in statutory text--either modified over multiple Congresses (statutory history) or developed in successive pre-enactment versions of a bill (drafting history). This "vertical history" is apparently more attractive, or less unattractive, to textualist Justices than is traditional legislative history commentary such as committee reports. More broadly, circuit courts regularly use legislative history to resolve ambiguities, confirm apparent meaning, or simply explicate legislative intent, all without characterizing its legitimacy or systemic value.

For both dictionaries and legislative history, the eclectic approach of the appeals courts differs markedly from the Supreme Court's more self-consciously articulated methodological path. We suggest how certain sources of interpretive divergence contribute to these differences, notably the Justices' interaction with their colleagues in every case and their experience as objects of continuing media and congressional attention, some of which reflects attention that carries over from the judicial confirmation process. We conclude that the eclecticism of the appeals courts is likely to limit judicial discretion more effectively than the Supreme Court's current approach, which favors clear interpretive rules or priorities that are applied on a presumptively consistent basis.

INTRODUCTION I. THE POTENTIAL FOR INTERPRETIVE DIVERGENCE A. The Limited Role of Hierarchical Instruction B. The Repeat Player Effect C. Resource Imbalance D. Congressional and Media Attention E. The Judicial Selection Process II. EMPIRICAL FINDINGS A. Supreme Court Versus Courts of Appeals: Usage and Reliance 1. Dictionary Use and Reliance 2. Legislative History Use and Reliance 3. Legislative History Usage Versus Dictionary Usage B. Supreme Court Versus Courts of Appeals: Attributes of Usage 1. Dictionary Usage Patterns 2. Legislative History Usage Patterns C. Supreme Court Versus Courts of Appeals: A Closer Look 1. Rates of Usage and Reliance 2. Attributes of Usage D. Comparing the Circuits III. PRAGMATIC ADAPTABILITY IN THE CIRCUIT COURTS: A PROTEAN APPROACH A. Dictionary Use: Text, Purpose, Pragmatism 1. Commercial Law Examples 2. ERISA Examples 3. Criminal Law Examples of De Minimis or Minor Use 4. Small Number and Limited Import of Barrier Cases B. Legislative History: Strategic and Functional Approaches 1. The Supreme Court's Strategic Perspective on Legislative History 2. Second Circuit Reliance in Criminal Law Cases C. A Protean Approach to Statutory Interpretation 1. Empirical and Doctrinal Comparisons Summarized 2. Interpretive Divergence Factors Reconsidered 3. Normative Implications CONCLUSION INTRODUCTION

For the past several decades, debates over statutory interpretation have focused to an extraordinary extent on the rise of textualism in the Supreme Court and the consequent disagreements between textualists and purposivists. Legal scholars have examined the Court's growing appetite for dictionaries and canons, (1) its diminished attention to legislative history and purpose, (2) and its evolving approach to the role of agency deference. (3) Largely overlooked in the debates is whether lower federal courts practice what the Supreme Court has preached, or whether they ought to do so. (4)

We have chosen to examine two prominent interpretive resources, one prototypically textualist--dictionaries--and the other classically purposive--legislative history. Battles between the textualist and purposive schools have been squarely joined at the Supreme Court level. Textualist Justices have argued strongly for an interpretive approach that emphasizes the ordinary meaning of words and the semantic structures of statutory text. They rely heavily on dictionaries and language canons to discern statutory meaning, (5) and often discount or reject committee reports and floor debates as superfluous or illegitimate. (6) Purposive Justices have pushed back, contending that text is often less than conclusive and that considerations of congressional intent and purpose require consulting legislative history to help resolve ambiguities (7) and to confirm or reinforce the apparent meaning of text. (8)

This Article explores how judges in the courts of appeals approach statutory interpretation under different terms of engagement. We examine empirically whether circuit court judges embrace, or clash over, interpretive theories as the Justices have so often done, or--alternatively--whether they apply textualist and purposive resources in ways that are more pragmatic, and less dogmatic, than their Supreme Court counterparts. We also address normatively whether courts of appeals ought to follow a more eclectic and adaptable interpretive approach, given the divergent institutional realities under which they decide cases.

In a preliminary consideration of differences between circuit court and Supreme Court approaches, we found that dictionary use in the Supreme Court between 1986 and 2011 was substantially higher than in circuit courts for the very same cases--that is, circuit court decisions on which the Court had granted certiorari and reached decisions on the merits. (9) We suggested that this difference might be due to both political and institutional factors. The Court's greater political exposure may lead the Justices to invoke dictionaries as part of an effort to deflect charges of judicial activism. (10) In addition, the more routinized aspects of circuit court review, combined with the absence of permanent membership on particular circuit court panels, may result in circuit courts adopting less of an institutional culture regarding the use of specific interpretive resources such as dictionaries. (11)

This Article reports on our more comprehensive and textured effort to compare Supreme Court and appeals court usage of dictionaries and also legislative history. Our analyses are based on a dataset comprised of federal appeals court decisions in three circuits (Second, Seventh, and Tenth) covering three statutory subject areas (criminal law, business and commercial law, and labor and employment law) from September 2005 through May 2015, as well as Roberts Court decisions in the same three fields over the same time period.

To summarize certain key findings at the outset, the Supreme Court uses both dictionaries and legislative history considerably more often than do the courts of appeals. In terms of balance between the two resources, the Court's use of legislative history is only modestly more frequent than its own dictionary use, whereas the circuit courts are far more likely to use legislative history than dictionaries. This substantially higher use of legislative history relative to dictionaries by the courts of appeals is evident in all three subject areas and in all three circuits. (12) As a result, the gap between the Supreme Court and courts of appeals in dictionary usage is much greater than the gap in usage of legislative history. This difference is also considerable for circuit court cases in which the Supreme Court granted certiorari and then used the resource in question: in such cases, the courts of appeals used legislative history more often than they used dictionaries. (13) These findings lend strong support to our previously expressed idea that a distinctive dictionary culture is prevalent in the current Supreme Court. (14)

Looking more closely at each interpretive resource, we found that the relative frequency of dictionary use between the two court levels varies considerably depending on the subject area and the type of dictionary. Supreme Court dictionary use in criminal law decisions is notably higher than in business and commercial or labor and employment cases; by contrast, circuit court dictionary use in business and commercial law decisions is more than double that in criminal or labor and employment cases. (15) Moreover, in criminal law cases the circuit courts often invoke dictionaries for de minimis reasons; thus their reliance on cited definitions is considerably lower than Supreme Court reliance in criminal law decisions. The Supreme Court also uses general dictionaries over all three fields to a much greater extent than legal dictionaries, whereas the courts of appeals invoke legal dictionaries substantially more than general dictionaries. (16)

With respect to legislative history, there are intriguing differences in how legislative...