• 20 April 2009

Choosing Interpretive Methods: A Positive Theory of Judges and Everyone Else

Alexander Volokh - Emory Law School

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Textualism is a “conservative” method of statutory interpretation, according to the conventional wisdom.1  William Eskridge calls it “antigovernmental”;2 Andrei Marmor calls it “neo-conservative” and antiregulatory.3  For example, Bradford Mank rejects the suggestion that textualism can be friendly to environmental regulation, noting that “textualists tend to devalue the policy balances struck by environmental agencies between broad pro-environmental aspirational language and narrow pro-industry exceptions.”4

One commonly stated reason for the association of textualism with limited regulation—voiced both by Frank Easterbrook, a textualist, and by Marmor, an antitextualist—is that textualists let loopholes in regulatory statutes lie, choosing not to fill them in with broad readings that might make sense in the context of the regulatory scheme or that accord with the intent of the enacting legislature.  Eskridge suggests another, more long-term, reason:  By forcing Congress to revise statutes to reflect new circumstances, rather than allowing judges to do it themselves, textualists raise the cost of legislation.  This—in accord with conservative antiregulatory sympathies—reduces the amount of legislation in the future.

The conventional wisdom likewise holds that textualist opinions are more likely to be overridden by Congress.  Why?  Because, Justice Stevens writes, textualists “ignore[] the available evidence of congressional purpose.”5 Or, suggests Eskridge—focusing on present, not past, intent—because “[t]he formalist group on the Court is not interested in the preferences of the current Congress.”6 Or, says Daniel Bussel—taking a pragmatic approach—because of textualists’ “agnostic stance with respect to the practical consequences, purpose, and efficacy of a particular construction.”7

Finally, a considerable literature argues that textualism is more likely to make judges operating under the Chevron framework find that a statute has a “plain meaning” and thus deny deference to an administrative agency’s interpretation of the law.8  Justice Scalia himself has candidly avowed:  “One who finds more often (as I do) that the meaning of a statute is apparent from its text and from its relationship with other laws, thereby finds less often that the triggering requirement for Chevron deference exists.”9  He has attributed his willingness to find plain meaning to his being “(for want of a better word) a ’strict constructionist’ of statutes”—by which (though he later rejected the term) he simply meant a textualist.10  Various empirical studies tend to confirm Scalia’s intuition.

Why might this be so?  Most obviously, textualism might actually be more determinate.  Less charitably, some have suggested psychological explanations for why textualists might think that their method yields determinate answers:  Textualists are more likely to find a plain meaning because they see the quest for meaning as a puzzle to test their ingenuity; intentionalists, by contrast, are more likely to find ambiguity because they approach their task as historical researchers uncovering pieces of evidence.

In short, the statutory interpretation literature is teeming with claims about textualism—its supposed political bias, its tendency to produce congressional overrides, and its tendency to find plain meaning.  These claims are largely based on “essentialist” explanations—that is, explanations resting upon the supposed nature of the textualist enterprise, which opposes closing loopholes, deemphasizes the intent of enacting (or current) Congresses, and treats interpretation as a logic game.  But this conventional wisdom may be mistaken:  It fails to take into account that the textualism we observe in written judicial opinions may be an unrepresentative sample of textualist analysis as a whole.

The Role of Ideology in Methods of Statutory Interpretation

Judges are not randomly assigned interpretive methods that they must use in writing opinions; they choose the method they like, perhaps differently from case to case, in ways that may have something to do with their own political preferences in the case at hand.  Therefore, we should not rush to draw conclusions about the nature of an interpretive method based on written opinions without trying to understand why judges have chosen the method in the first place.

Suppose, as scholars of the “attitudinal model” have argued, that judges are primarily motivated by the desire to implement their ideological agenda.11  In most of the attitudinal literature, methods of statutory interpretation are treated—if at all—as irrelevant, mere rhetoric.  But suppose that, in addition to having ideological goals, judges need—or want—to justify their rulings by reference to a plausible interpretation of some statute.  Then methods of interpretation can matter, at least to the extent that different methods make different results more or less plausible.

Consider, for instance, the Individuals with Disabilities Education Act, which allows prevailing parents to recover “reasonable attorneys’ fees as part of the costs.”12  According to the Second Circuit, the statutory text alone does not allow prevailing parents to recover expert witness fees.13  However, legislative history, dicta in a previous Supreme Court opinion, and the purposes of the statute all point to the opposite conclusion.14

Or consider the Clean Water Act, which defines “pollutant” to include “radioactive materials.”15  Does this cover radioactive materials that are already regulated by the Atomic Energy Commission (AEC)?  The answer, considering only the statutory text, is yes, as both the Tenth Circuit and the Supreme Court recognized.  The legislative history apparently “speaks with force” in the other direction, however, and suggests strongly that radioactive materials regulated by the AEC are not covered by the Clean Water Act.16

Finally, consider Title II, Subtitle B of the Bankruptcy Judges, United States Trustees, and Family Farmer Bankruptcy Act of 1986, which created a special Chapter 12 of the Bankruptcy Code for family farmers.17  The Act provided that the provisions of Chapter 12 did not apply to bankruptcy cases “commenced . . . before the effective date of this Act.”18 However, the legislative history said the opposite:  Bankruptcy cases “pending at the time of enactment” (filed under Chapter 11 or 13) could be converted to Chapter 12 cases under the “sound discretion” of courts, “where it is equitable to do so,” and subject to a list of factors.19

In these cases, textualism seems to lead to one rule of law, while intentionalism and/or purposivism seems to lead to another.  If a judge is ideologically motivated and has particular preferences regarding fee-shifting in disability cases, environmental regulation, or bankruptcy—all ideologically loaded areas—he may choose the interpretive method that allows him to reach the result he likes.

These examples are simple ones, of course, as it is widely recognized that most, if not all, interpretive methods—whether textualism, intentionalism, purposivism, or pragmatism—are capable of justifying a wide variety of results.  Thus, instead of talking of an interpretive method’s “leading” to a particular rule of law, we can talk of an interpretive method’s “pull” toward a particular rule of law.

If different interpretive methods make different results more plausible by privileging different materials (whether dictionary definitions, legislative conference reports, or anything else), they can exert a pull on the judge using that method.  If a judge has a particular “ideal point”—the point that he would choose if he considered himself free to rule unapologetically on policy grounds—the felt need to justify his ruling as a plausible interpretation of the statute will make him deviate from his ideal point in the direction of the most plausible point of whatever method he happens to be using.

If this is so, then individual judges—who today have broad choice among interpretive methods—will tend to select the interpretive method that, other things being equal, minimizes the extent to which they must deviate from their preferred outcomes.  This self-selection effect can seriously mislead observers as to the nature of different interpretive methods.

Textualism and Textualists

Suppose, for instance, that textualism and intentionalism can be used to justify almost identical ranges of possible policy results—except that the textualist range is slightly more conservative than the intentionalist range.  Then suppose that lawmakers adopted a Federal Rule of Statutory Interpretation mandating one method or another, or suppose that the Supreme Court took the advice of the House of Lords and mandated a method by judicial fiat; judges with different politics might still rule in different ways such that we would observe a distribution of opinions across the political spectrum, but the ideological distributions of judicial opinions under textualism and under intentionalism would be nearly equivalent.

But in our current regime of free interpretive choice, conservatives would tend to choose textualism because textualism can support slightly more conservative results; conversely, liberals would tend to choose intentionalism.  Judges’ ability to choose their own method would then substantially exaggerate the political differences between the methods:  We would observe only the most conservative possible textualist opinions and only the most liberal possible intentionalist opinions.

Thus, observers may conclude that textualism has a substantial conservative bias, when in fact its bias may only be slight.  (With a bit of ingenuity, one can even construct an example where textualism appears more conservative, when in fact it is not more conservative at all!)  Environmental policy is one area where textualism has often been thought to be a cover for a conservative, anti-environmental agenda—and looking at certain recent conservative opinions, such as the plurality opinion in Rapanos v. United States20 or Justice Scalia’s dissent in Massachusetts v. EPA,21 this view seems intuitively plausible.  However, this is one area where self-selection may seriously distort the picture.  To the extent that environmental laws embody strict requirements, bar cost-benefit analysis, and the like, an environmental litigator may positively relish the idea of litigating before a textualist judge rather than a pragmatist judge—holding the judge’s political ideology constant.

Observers may similarly conclude that textualist opinions are more likely to be overridden by Congress, when in fact it is merely opinions by relatively conservative judges (whatever their interpretive theory) that have been more often overridden by a relatively liberal legislature.  They may conclude that textualism is more likely to find a plain meaning, when in fact it may be merely anti-agency conservatives who exploit the malleable first step of Chevron to strike down agency action.  In short, many statements about textualism may really only be statements about textualists.  Observed textualism under today’s largely laissez-faire interpretive regime may be best explained by political factors.  Essentialist explanations may be perfectly valid—but may be better used to explain what the world would look like if textualism were mandated for everyone.22

This insight is applicable to any interpretive method, whether statutory or constitutional, and allows us to think more seriously about a wide range of interpretive questions.  For instance, a similar story could be told about intentionalism and intentionalists, pragmatism and pragmatists, or any other method and its current, voluntary practitioners.  Or one could talk about originalism (a constitutional theory also widely thought of as conservative) and originalists (a growing number of whom are liberal). There are two main differences between how this theory applies to statutes and how it may apply to the Constitution:  First, the “enacting Congress” in the case of the Constitution (the enacting “We the People”) usually does not vary that much across different constitutional provisions; the relevant enactors are predominantly people in 1787, 1791, or 1868, and, judging from the historical record, new and important amendments are unlikely in our lifetimes.  This tends to increase the substantive bias of static strategies of constitutional interpretation like originalism, since we already know what texts we are dealing with.  Second, constitutional interpretation leaves less scope for congressional overrides, though Congress can still react to decisions in ways short of overriding them.  But the basic intuition remains correct; political differences between interpretive methods may reflect differences between interpreters, not between methods.

Is the Distinction Between Method and Practitioner Useful?

Correct or not, is this insight useful?  Distinguishing between, on the one hand, the inherent nature of an interpretive method and, on the other hand, what the method looks like in the hands of its current practitioners, is useful in a number of ways.

First, suppose we are politicians, advocacy groups, or citizens mulling over whether to support an interpretive statute mandating textualism (or any other method).  Or, suppose we are judges considering whether to mandate textualism by judicial ruling.  Then we care about what an interpretive method will look like if everyone uses it; we thus need to know about its inherent nature.  To go back to the examples above, we need to know whether, as applied by everyone, the textualist and intentionalist ranges overlap substantially, in which case we may not care very much which method is mandated, or whether they lead to substantially distinct policy results in a large number of cases.

Second, suppose we are again politicians, advocacy groups, or citizens, only this time we are wondering whether to support a judge who is up for confirmation.  The press has mined his biography and public statements for all possible clues as to his policy preferences.  In addition, he has made many statements in which he has claimed to be a textualist; and, indeed, his judicial opinions show him to be a committed and consistent textualist.  What does this mean about him?  If, in the above paragraph, we had decided that textualism was the optimal interpretive method, does this mean we need to support textualist judicial nominees?  Not at all.  There need be no connection between these two inquiries.  We may oppose voluntary textualists because they are, say, conservatives, and their choice of textualism indicated a willingness to support conservative positions generally; but we may support a rule of mandatory textualism precisely because, under a mandatory rule, textualism and conservatism are no longer linked.  It can thus be reasonable for someone to say:  “I love textualism, and would favor mandating it for everyone.  But I hate textualists, and will consistently vote against all textualist judges.”

The same analysis applies outside of the narrow context of evaluating judges.  Suppose we are a non-profit organization that advocates on public policy issues and also does litigation.  We may push for a Federal Rule of Statutory Interpretation mandating textualism, but we would not need to push textualist positions in our litigation, say if textualism led to an undesirable policy outcome in a particular case.  And, of course, the same analysis applies if we are a judge who would favor mandating textualism for everyone; this theory tells us why we may still feel comfortable not using textualism consistently in those cases where it does not serve our policy preferences.

As a final note, we may wonder whether even a purely results-oriented actor—say, a judge—might not prefer to use a particular method consistently.  Suppose you are a judge and have come across a case where textualism (your favorite method overall) fails you, and leads to a result that you don’t like.  Using some different method will serve your policy preferences in this case.  But doing so could also make you appear inconsistent, which might harm you down the road. (Public relations may be important for judges as well as for advocacy organizations, though they will only come into play to the extent that people care about methodological rather than political issues.) Moreover, to the extent that the frequent use of an interpretive method “strengthens” the method—that is, makes it more likely that the method will be used by other judges in the future—one may be willing to sacrifice one’s short-term interests for the long-term benefit of inducing others to use one’s favored method in other cases.

However, except in rare cases, this effect is probably fairly weak for the individual judge and even weaker for the individual litigation group.  Even if a judge supports a particular interpretive method, and wants it to be mandated for everyone, it still would make sense for him to sometimes diverge from that method.  The same goes for an advocacy organization, which may favor an interpretive method but not use it in every case.  Because their methodological choices usually make almost no difference to the long-term viability of the method, it usually makes little sense for results-oriented actors to sacrifice their immediate political agendas for the sake of their favored methodologies.


I have aimed to contribute to the existing literature on interpretation in two ways.  First, many positive political theory articles have assumed that judges simply want to rule a particular way—either because of their biases or because of their taste for a specific theory of interpretation—and would do so if they did not fear congressional overrides.  By contrast, I have described how a self-interested judge neither chooses a theory in the abstract nor rules according to his pure bias, but is rather drawn in different directions by different theories of statutory interpretation.  Theory and rhetoric are neither irrelevant nor determinative.

Second, most normative arguments about statutory interpretation seem to assume that a “good” theory is good for all people and for all purposes—whether one is an individual judge deciding a case; a legislator, scholar, or advocate evaluating judges; or a legislator, scholar, or advocate (or even judge) deciding on policy for the whole judiciary. Many of the articles making such arguments are judge-centered and ignore everyone else’s choice of theories, but to the extent that they advance normative arguments for some interpretive theory without explicitly distinguishing between the different contexts in which these arguments can be made, they seem to assume that the best theory for judging individual cases should also be preferred in evaluating judges or in setting policy for the judiciary.

I have sought to unbundle that package, explaining how different theories can be “best” for different people and different purposes.  In particular, whether one likes a theory, and would want to impose it on the whole judiciary, need not bear any relation to whether one should support practitioners of the theory today.  In a world of free methodological choice, those practitioners may just be showing their political biases.  Similarly, whether one likes a theory need not bear any relation to whether one would consistently use that theory in individual cases, either as a judge or as a litigator.

Actually determining which theory one “likes” is, admittedly, hard to do.  To determine the true substantive bias of different interpretive strategies, one has to take many doctrinal areas into account.  Further, the facts that bias an interpretive method in one direction or another vary over time as members of Congress and the judiciary change.  Drawing out the full consequences of adopting a method—and thus choosing a method that best suits one’s substantive agenda—may therefore be impossible.  One response to our ignorance would be to decide that it’s all a wash and ignore the whole enterprise of choosing interpretive methods on substantive grounds (though abandoning the whole exercise might be an excessive response, as different methods may still systematically differ in important ways). One might then choose no method at all, or commit oneself to a method on some other ground, like democratic or constitutional theory.

But assuming that it is possible to determine which method one likes on substantive grounds, I have tried to discipline that inquiry by showing how the answer depends on who one is and what one is trying to do.  To those who have assumed that the result of the inquiry should be the same for all actors and all purposes, this theory may suggest that they reconsider their consistency.  I do not suggest that a foolish consistency is the hobgoblin of little minds, but, as an economist, I suggest (less eloquently) that an unexamined consistency may be individually suboptimal.dingbat



Copyright © 2009 New York University Law Review.

Alexander Volokh is Visiting Assistant Professor, University of Houston Law Center; Assistant Professor-Designate, Emory Law School.

This Editorial is based on the following full-length Article:  Alexander Volokh, Choosing Interpretive Methods: A Positive Theory of Judges and Everyone Else, 83 N.Y.U. L. REV. 769 (2008).
Click Here for the Full Article

  1. William N. Eskridge, Jr. & Philip P. Frickey, The Supreme Court, 1993 Term-Foreword: Law as Equilibrium, 108 HARV. L. REV. 26, 77 (1994); see also Daniel A. Farber, Essay, Do Theories of Statutory Interpretation Matter? A Case Study, 94 NW. U. L. REV. 1409, 1414 (2000) (citing Eskridge & Frickey, supra, at 77).
  2. William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331, 410 (1991).
  3. Andrei Marmor, The Immorality of Textualism, 38 LOY. L.A. L. REV. 2063, 2064 & n.3, 2066 (2005).
  4. Bradford C. Mank, Is a Textualist Approach to Statutory Interpretation Pro-environmentalist?: Why Pragmatic Agency Decisionmaking Is Better than Judicial Literalism, 53 WASH. & LEE L. REV. 1231, 1267 (1996). Mank is responding to the claims of Richard Lazarus and Claudia Newman, who argue to the contrary. See Richard J. Lazarus & Claudia M. Newman, City of Chicago v. Environmental Defense Fund: Searching for Plain Meaning in Unambiguous Ambiguity, 4 N.Y.U. ENVTL. L.J. 1, 23 (1995).
  5. W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 113-15 (1991) (Stevens, J., dissenting).
  6. Eskridge, supra note 2, at 406.
  7. Daniel J. Bussel, Textualism’s Failures: A Study of Overruled Bankruptcy Decisions, 53 VAND. L. REV. 887, 897 (2000) (observing that overruled cases are disproportionately textualist in method).
  8. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) (“First . . . is the question whether Congress has directly spoken to the precise question at issue. If {yes}, that is the end of the matter; for the court, as well as the agency . . . .”).
  9. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 521.
  10. Id.
  11. See, e.g., JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL, at xvi, 69 (1993) (describing influence of Justices’ attitudes and outlooks on outcomes).
  12. 20 U.S.C. § 1415(i)(3)(B) (2000 & Supp. V 2005).
  13. Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332, 336 (2d Cir. 2005), rev’d, 126 S. Ct. 2455 (2006).
  14. Id. at 336-38.
  15. 33 U.S.C. § 1362(6) (2000).
  16. Train v. Colo. Pub. Int. Res. Group, 426 U.S. 1, 11-23 (1976).
  17. Pub. L. No. 99-554 § 255, 100 Stat. 3088, 3105-14 (1986) (codified as amended at 11 U.S.C. §§ 1201-31 (2000 & Supp. V 2005)).
  18. § 302(c)(1), 100 Stat. at 3119 (codified at 28 U.S.C. § 581 note (2000)).
  19. In re Sinclair, 870 F.2d 1340, 1341 (7th Cir. 1989) (quoting statute and discussing conflict between statutory text and legislative history).
  20. See 547 U.S. 715, 733 (2006) (plurality opinion) (Scalia, J.) (arguing that “transitory puddles” and “ephemeral flows of water” are not within scope of Clean Water Act).
  21. See 127 S. Ct. 1438, 1471-78 (2007) (Scalia, J., dissenting) (disagreeing with majority’s broad definition of “air pollutant”).
  22. Note the prevalence of the verb “may” in the above paragraphs. This article is theoretical, not empirical, so definitively evaluating the conventional wisdom is a matter for future research. However, the theoretical insight allows us to speculate on alternative, non-essentialist explanations for these phenomena, which take self-selection into account.

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