Reply: the institutional dimension of statutory and constitutional interpretation.

AuthorPosner, Richard A.
PositionResponse to Cass R. Sunstein and Adrian Vermeule, Michigan Law Review, vol. 101, p. 885, 2003

Cass Sunstein and Adrian Vermeule argue in Interpretation and Institutions (1) that judicial interpretation of statutes and constitutions should take account both of the institutional framework within which interpretation takes place and of the consequences of different styles of interpretation; they further argue that this point (2) has been neglected by previous scholars. The first half of the thesis is correct but obvious; the second half, which the authors state in terms emphatic (3) to the point of being immodest, (4) is incorrect. Moreover, the authors offer no feasible suggestions for how the relation between interpretation and the institutional framework might be studied better than it has been by their predecessors. And the article is rife with unresolved tensions, for example between the article's theses and Sunstein's previous scholarship and between the article's insistence on rigorous empiricism, on the one hand, and, on the other, its empirically ungrounded praise for judicial formalism and "clause-bound interpretation" of the Constitution, (5) its implicit skepticism whether constitutional rights (unless clearly stated in the text of the Constitution) should be judicially enforceable at all, and its explicit enthusiasm for administrative agencies. The survey of previous scholarship lacks breadth and depth; an unkind critic might describe the article as a species of armchair legal scholarship that pitches its critique at so lofty an altitude that the authors have difficulty seeing the objects of their criticisms clearly. (6) Nevertheless, the article contains a number of interesting observations and shrewd criticism, and is useful as a reminder of an important issue that, although it has not been overlooked, does deserve additional attention.

A more nuanced (to borrow one of the authors' favorite words) treatment of the subject would have produced a rather different article, of which the following might be the abstract:

The institutional dimension of legal interpretation--the fact that sensible principles of interpretation depend on the characteristics, in particular the capacities, of the various institutions that compose the legal system, including legislatures, agencies, and courts--has long been recognized. But it has not, in our opinion, been sufficiently emphasized or subjected to adequate empirical inquiry. Some scholars of interpretation, such as Dworkin and Lessig, ignore the institutional dimension entirely, though without necessarily denying its significance. Others, such as Easterbrook and Scalia and the "post-Thayerians" (such as Parker and Tushnet), premise their views of interpretation largely on institutional considerations, but do not discuss them at any length. Others, who do, such as Bickel, Hart and Sacks, Hayek, and Calabresi, have in our opinion erroneous conceptions of the relative capacities of judges and legislators. Even those who, like Breyer, Ely, Eskridge, and Posner, engage in detailed and realistic analysis of the institutional factors in interpretation, which they clearly regard as central, have not attempted the type of empirical analysis necessary to resolve the age-old debates over formalism, judicial activism, and the appropriate scope of administrative discretion. There is a rigorous empirical literature on legal institutions, but most of it is not focused on their significance for interpretation. We propose empirical studies of that significance, though we are mindful of the serious problems of feasibility that would beset such studies and are not inclined to conduct such studies ourselves. We acknowledge that our own analysis implies agnosticism regarding the interpretive questions that we discuss, such as the proper scope of judicial review of legislative and administrative action and whether constitutional rights should even be justiciable. This agnosticism has compelled us to abandon confident assertions about these matters that each of us made in his earlier scholarly writings. II.

A court has, roughly speaking, a choice between two conceptions of its role. One is narrow, formalistic; the model is that of deducing legal outcomes from a major premise consisting of a rule of law laid down by a legislature and a minor premise consisting of the facts of the particular case. The other conception is broader, free-wheeling, pragmatic; judicial discretion is acknowledged and an outcome that is reasonable in light of its consequences sought. A court that takes the first route will be inclined to narrow, "literal," "strict," "originalist," or "textualist" (7) interpretation of statutes and constitutional provisions, interpretation that sticks closely to the surface meaning of the text as its authors would have understood that meaning, as that is the kind of interpretation that minimizes (or at least pretends to minimize) judicial discretion. A court that takes the second route will be inclined to loose construction, recognizing and trying to adjust for the limitations of foresight of legislators and the framers of constitutional provisions, limitations that can make literal interpretation a trap; trying in short to reach reasonable results consistent with the broad purposes of the provision in question. The choice between these styles of adjudication and hence interpretation is relative to circumstances, and the circumstances are strongly influenced by institutional considerations. These include the structure and personnel of the judiciary and of the legal profession more broadly; the structure, personnel, and operating methods of the legislature; the relative competence of the different branches of government with respect to specific classes of issue; (8) the power relations among the branches; and the political, economic, and social institutions of the society.

These issues have preoccupied scholars for many years, a point obscured by Sunstein and Vermeule's selective canvass of the literature on their subject. In a recent article that they do not cite, coauthored by a law professor and a political scientist, we read: "This Article presents an analysis of the institutional context of judicial decisionmaking and of how that context affects decisions." (9) And in another, "comparative institutional analysis can inform how courts exercise their interpretative function." (10) Indeed, most scholars of judicial interpretation have placed institutional considerations and dynamic consequences (such as the feedback effect from free-wheeling interpretation to legislative drafting) front and center. Among those whom I shall be discussing are Guido Calabresi, Frank Easterbrook, Antonin Scalia, Henry Hart, and Albert Sacks. Others who could be mentioned include Bruce Ackerman, William Eskridge, (11) and John Hart Ely, whose influential theory of constitutional interpretation, which Sunstein and Vermeule do not discuss, is based on Ely's conception of the institutional limitations, specifically the democratic deficiencies, of the nonjudicial branches of government. (12)

Sunstein and Vermeule are correct, however, that the interpretive theories of Ronald Dworkin and Lawrence Lessig do not take account of institutional factors. (13) Yet their criticism of those two scholars is not entirely just. Dworkin and Lessig want to show that loose construction is consistent with fidelity to the intent of legislators, including the framers and ratifiers of the Constitution. The question of consistency is different from the question whether loose construction is prudent given the institutional limitations of courts. The second question is important; but scholars are permitted to discuss one question at a time. By dubbing his model judge "Judge Hercules," Dworkin made clear that he was abstracting from institutional considerations, as he is aware that judges do not have herculean capacities. He is entitled to do that without being accused of institutional blindness. Where he can be faulted is in using his partial analysis as the basis for confident evaluations of particular interpretive issues, such as the assisted-suicide issue that Sunstein and Vermeule discuss.

But Dworkin and Lessig are actually in a minority in not discussing the institutional dimension of interpretation. For example, students of public choice theory, and political conservatives generally--who are skeptical about the good faith of legislators, fear the excesses of democracy, think of statutes as unprincipled compromises, and do not want to help legislators achieve their ends (these skeptics may doubt that legislation has ends worthy of assistance)--tend to favor strict interpretation. They doubt that statutes have a "spirit" or coherent purposes that might channel loose interpretation. They may also wish to hamstring legislatures, forcing them to make constant amendments to adjust to changing conditions; courts committed to strict construction refuse to lend legislatures a helping hand. (14) The skeptics make at least one good point: to the extent that a statute is a product of compromise, a court that interprets the statute to make it more effective in achieving its central goal may be overriding the legislative compromise. (15)

At the opposite end of the spectrum from the skeptics, Hart and Sacks, and Calabresi, urge loose interpretation (carried by Calabresi to the extreme of allowing courts to nullify statutes that have become obsolete) and do so on the basis of an explicit belief in the essential good faith, care, intelligence, and public spiritedness of legislators, who these scholars believe welcome a helping hand from judges. (16) They may be quite wrong about legislators, but they can hardly be accused of being blind to institutional considerations--those are the very considerations that motivate their theories. As Professor Duxbury, in his survey of American jurisprudence, explains with reference to Hart and Sacks:

Adjudication, they recognized, is but one form of institutional activity...

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