Introduction

Judges Frank Easterbrook and Richard Posner recently clashed over the economics of the mutual fund industry in Jones v. Harris Associates L.P., a case challenging the fees paid to a fund’s investment adviser.²  The opinions also delineate Easterbrook’s and Posner’s differing philosophies of statutory interpretation and reveal the strengths and limits of Easterbrook’s textualism.

Section 36(b) of the Investment Company Act of 1940 imposes “a fiduciary duty with respect to the receipt of compensation” upon investment advisers.³  In Jones, Chief Judge Easterbrook disavowed the longstanding test for suits under § 36(b), holding that advisers have a duty to make full disclosure and avoid fraud but are not subject to a limit on compensation.  Dissenting from a denial of rehearing en banc, Judge Posner argued that the Jones decision was based “on an economic analysis that is ripe for reexamination.”⁴

The Seventh Circuit’s opinion does rely heavily on an economic analysis that counts on competition to restrain adviser compensation.  But the opinion can also be viewed as the product of two strains of thought in Judge Easterbrook’s scholarship: first, a unique theory of statutory interpretation based on public choice principles and, second, a preference for limited government regulation.

Judge Easterbrook’s theory of interpretation can be a powerful tool.   However, the theory also guided the court to a conclusion inconsistent with the text of § 36(b), virtually nullifying the statute’s intended effect. Jones suggests that Easterbrook’s theory of interpretation is inadequate as a solitary tool for interpreting statutes.

Public choice principles help to set limits on interpretation, but they do not provide a guide to interpretation within those limits.  Ultimately, Judge Posner’s own theory of pragmatic interpretation, applied obliquely in his dissent, provides an important counterpoint to Easterbrook’s skeptical textualism.

I. Conflicting Theories on Statutory Interpretation

Public choice theory rejects the view that legislation is crafted by a group of representatives working rationally in the public interest.  Instead, it sees legislation as a compromise between many different public interests—competing groups vying for bills that serve their own purposes rather than those of the public as a whole.

Judge Easterbrook has molded these principles into a comprehensive theory of statutory interpretation.⁵  First, a judge should ascertain a statute’s plain meaning.  Anything not within the statute’s clear and direct purview is simply not covered.  Second, legislative history and freestanding references to purpose are irrelevant and perhaps counterproductive: A judge who goes too far in attempting to advance the “purpose” of the statute is betraying that compromise by giving one group more than they could secure in the legislative bargaining process.

Third, if Congress implicitly delegates power to the courts through the use of common law terms, then courts have the discretion to “solve new problems as they arise, but using today’s wisdom rather than conjuring up the solutions of a legislature long prorogued.”⁶

Judge Posner’s own theory of pragmatic interpretation takes a different approach.  For Judge Posner, ascertaining the purpose of a statute may be difficult, but it is not impossible, and one of the judge’s functions is to adapt the imperfect and necessarily myopic words of a statute to actual situations as they arise.  Posner recognizes the risks of unbalancing the compromise.

Judge Posner and Judge Easterbrook also possess different conceptions of their duties as agents of the legislative will.  Easterbrook’s theory of strict construction derives from a sense of fidelity to the principles of republican government and constitutional limits on judicial discretion.  By contrast, Posner’s duty is “to reach the most reasonable result in the circumstances.”⁷  He therefore uses all the tools at his disposal, including the text, structure, and background of the statute, any relevant legislative history, and “the values and attitudes . . . of the period in which the legislation was enacted.”⁸

II. Judge Easterbrook’s Theory Applied: Jones v. Harris Associates L.P.

One method for testing Judge Easterbrook’s brand of textualism is to evaluate how well his principles serve to interpret a statute in a particular case.  His panel opinion in Jones is an ideal candidate for such a case study because it reveals both the utility and the limits of Easterbrook’s theory.

Congress enacted the Investment Company Act of 1940 (ICA) in order to curtail abuses in the mutual fund and investment adviser industry.  The ICA installed a comprehensive federal regulatory scheme for investment companies that supplemented what had previously been solely state oversight.  In 1970, Congress amended the ICA by adding § 36(b), which imposes on investment advisers “a fiduciary duty with respect to the receipt of compensation for services,”⁹ and permits any investor in the fund to bring an action on behalf of the fund against the adviser for violations of the fiduciary duty.  Congress did not, however, define what it meant by fiduciary duty.

Since 1982, courts in many circuits, the SEC, and the fund industry have determined whether this duty has been breached by looking to the so-called Gartenberg factors to evaluate “whether the fee schedule represents a charge within the range of what would have been negotiated at arm’s-length in the light of all of the surrounding circumstances.”¹⁰

The plaintiffs in Jones argued that the Gartenberg standard relies too heavily upon the market to regulate fees.  The crux of the plaintiffs’ allegations was that the adviser charged its client funds (composed of individual investors) a fee twice as high as what it charged institutional investors such as pension funds (who have real bargaining power) for comparable services.

Fortunately for the plaintiffs, the Seventh Circuit agreed that Gartenberg should be abandoned.  Unfortunately for them, however, the Seventh Circuit felt that the problem with Gartenberg was not that it was too market-driven, but that it was not market-driven enough.  The court held that “[a] fiduciary must make full disclosure and play no tricks but is not subject to a cap on compensation.”¹¹

Jones is a comprehensive example of Chief Judge Easterbrook’s application of his theory of statutory interpretation.

The plaintiffs, relying upon statements from legislative history, argued that the correct standard was whether the fees were reasonable.  Judge Easterbrook, however, sought little guidance from Congress, refusing to find in the statute a directive to review fees for reasonableness because the plain language could have included it, but does not.

Further, after finding that the statute does not mean that fees must be reasonable, he avoided reference to the legislative history to decide what the statute does mean.  To Judge Easterbrook, fiduciary duty had no meaning unique to the context of the statute or its history.  “Congress did not enact its members’ beliefs,” he asserted; “it enacted a text.”¹²

And that text says “fiduciary duty.”  The statute’s use of this common law term was a delegation of authority to the judiciary.  Judge Easterbrook therefore applied “today’s wisdom,” surveying economic studies and compensation in a number of fiduciary contexts, such as that paid to corporate managers, lawyers, and university presidents.  Because competition is more than adequate to regulate fees today, he explained, § 36(b)’s fiduciary duty requirement does not require judicial review for excessiveness except in rare instances.

Instead of using litigation, shareholders must rely upon competition to rein in excessive fees.  The opinion evinces a faith in competition and a suspicion of regulation that are recurring characters in Judge Easterbrook’s scholarly work.

Judge Posner’s dissent challenged the panel opinion’s reliance upon laissez-faire principles to create efficient markets for adviser compensation, citing to an array of studies suggesting that the mutual fund board structure and competition among funds cannot effectively regulate advisory fees.  First, he contended, boards of directors are massive breeding grounds for agency conflicts.  Second, he questioned the panel’s casual dismissal of the disparity between the fees Harris charges mutual funds and the fees it charges its institutional clients.  In fact, studies demonstrate that the principal reason for the disparity is the lack of bargaining between the mutual fund board and its adviser.

Finally, Judge Posner disputed the panel’s analysis of common law fiduciary duties.  For Posner, every captive fund in an industry that has similar agency problems will exhibit similar price structures—all of them too high and all negotiated by a servile board of directors.

Judge Posner did not explicitly apply pragmatic statutory interpretation.  Nevertheless, his critique of the court’s decision comports with his theory.  His engagement with the kinds of problems that beset fiduciary relationships in the mutual fund industry represents an attempt to imagine how the enacting legislators would have applied § 36(b) to the case at bar.  Moreover, Posner resisted employing a fiduciary duty standard that would make achieving the legislative purpose more difficult.

III. Critique: Theory and Practice in Jones

Judge Easterbrook correctly rejected the plaintiffs’ contention that, under the Investment Company Act, the fees charged by investment advisers must be reasonable.  During enactment, the mutual fund industry strongly opposed two previous amendments to the Investment Company Act precisely because they contained a reasonableness standard.  Those bills both failed to pass, and the Senate Report accompanying § 36(b) explained that Congress did not wish to equate a fiduciary duty with a rate regulation standard.¹³

Judge Easterbrook’s decision to reject their reading thus comports with the legislative compromise embodied in the statute.  By refusing to consider misleading congressional statements to the contrary, he excluded a patently incorrect meaning outside the text’s purview.  In other words, Easterbrook’s theory is quite effective at discerning what the statute does not mean.  The theory is less successful, however, at explaining what the statute does mean.

Judge Easterbrook took the presence of a common law term as a delegation to apply his own conception of fiduciary duties.  A fiduciary duty exists where a principal gives a fiduciary control over her property or affairs; when the fiduciary consents, he is then obliged to act for the benefit of the principal within the scope of the fiduciary relationship.

That said, before consenting to serve as a fiduciary, the agent can bargain with the principal for his compensation.  The court in Jones applied this conception in holding that § 36(b)’s fiduciary duty “with respect to receipt of compensation”¹⁴ requires very limited review of advisory fees.

One can see the problem here.  Section 36(b) does not say merely that investment advisers owe the fund a fiduciary duty.  Instead, it says that advisers owe a fiduciary duty with respect to their compensation.  A fiduciary negotiating for his own compensation has an inherent conflict of interest if he owes his principal a duty regarding that compensation.

Section 36(b) also states that “[i]t shall not be necessary to allege or prove that any defendant engaged in personal misconduct.”¹⁵  That language does not comport with a view that the only situations in which a plaintiff can bring an action for excessive fees are those in which the fee is so disproportionately large that the court must infer that deceit or abdication of duty—both forms of personal misconduct—have occurred.

Despite Judge Easterbrook’s misgivings, the legislative history can help to resolve those difficulties.  Before § 36(b), courts evaluated advisory fees by “common-law standards of corporate waste, under which an unreasonable or unfair fee might be approved unless the court deemed it unconscionable or shocking.”¹⁶  But because of rapid growth in the mutual fund industry, the SEC began to fear that fund advisers were failing to pass along savings from economies of scale to fund customers.

Although the Senate Report indicates that the term fiduciary duty does not imply reasonableness in the sense of rate regulation, cost-plus pricing, or courts substituting their business judgment for that of the board, it also lowers the bar for plaintiffs by removing the requirement that the board or the adviser be guilty of misconduct and by asking the court to consider all of the circumstances surrounding negotiations.

Because Congress felt that the board–adviser structure of mutual funds created conflicts of interest that made traditional arm’s-length bargaining impossible, it imposed a duty requiring that the adviser simulate the results of arm’s-length bargaining.  Relevant to the inquiry are factors indicating whether meaningful negotiations had taken place.

Jones essentially attempted to nullify § 36(b), returning the standard to where it was prior to 1970: corporate waste.  “Shocks the conscience” is so similar to “so unusual that a court will infer that deceit must have occurred, or that the persons responsible for decision have abdicated”¹⁷ that in practice there would be no difference between either principle.

Thus, in trying to avoid giving regulators and investor plaintiffs more than they got at the legislative bargaining table, Judge Easterbrook actually gave investment companies more than they were able to secure from Congress.  Congress almost surely did not set out to use language that accomplished absolutely nothing.

IV. The Limits of Public Choice Theory

Jones reveals several problems with the application of Judge Easterbrook’s theory of statutory interpretation.  These problems may be inherent:  Proceeding from its deep suspicion of the legislative process, public choice textualism looks at the text of a statute and sees only the competing interests of various factions, and shiftless, reelection-focused representatives.

Many statutes, however, actually attempt to serve the public interest, and in many cases the legislative history accurately reflects what the legislature was trying to do.  In Jones, public choice textualism guided the court to add a requirement of deceit to a statute that expressly disclaims any such requirement, to allow parties who owe a fiduciary duty with respect to compensation to demand whatever compensation they can get, and to respond to a bill designed to ease the corporate waste standard by requiring a showing of corporate waste.

Jones also suggests that public choice textualism may be less suited to accurately identifying the legislative compromise than it is to limiting the scope of legislation.  The standard for assessing mutual fund advisory fees did not change merely because the court asserted that the mutual fund industry did.

In Statutes’ Domains,¹⁸ Judge Easterbrook provides an example of a statute that requires the leashing of dogs in public parks to illustrate that his theory is a valid check on judicial discretion.  According to Easterbrook, considering the purpose of the law—perhaps to prevent dangerous animals from prowling city parks—might also lead the judge to extend the statute to require the leashing of lions.

To be sure, a statute that requires the leashing of dogs should not extend to lions, a term outside the text.  Another common interpretive problem, however, is a dispute about the meaning of a term in the text.  Consider a statute that requires dogs to be “on a leash,” but this time imagine a situation in which the leash is attached to the dog’s collar, but the dog’s owner is not holding the leash.  Is the dog on a leash?  The dog is certainly attached to a leash.  Yet what is the use of allowing an owner to hook up the leash and let the dog run about with abandon?  In this instance, inquiring into a statute’s purpose is a useful way to decide between competing interpretations of an ambiguous text.

Conclusion

Public choice theory can provide valuable insights into the process of statutory interpretation.  But the notion that laws are products of compromises between competing interest groups does not mean that one may utterly abandon the search for meaning in a statute or that one should conclude that the purpose of the legislature is not an important consideration in interpretation.  Public choice theory can tell us where to draw lines, but it cannot tell us what to do inside those lines.

We may never know what song the Sirens sang¹⁹ or the true plot of The Turn of the Screw.  But we can, by applying standard methods of interpretation, be reasonably certain that characters played by Paul Newman and Robert Redford are shot to death by the Bolivian cavalry at the end of Butch Cassidy and the Sundance Kid.  Even if we cannot see it.

Acknowledgments

Daniel D. Birk received his J.D. from Northwestern University School of Law in 2010, his M.A. from Brooklyn College in 2007, and his B.A. from University of Notre Dame in 2003.

I would like to thank Professors Ezra Friedman and Allan Horwich for their guidance and Ira Karroll, Mark Nadeau, Ana Sempertegui, and Judd Stone for their helpful comments and suggestions.

This Legal Workshop piece is based on Mr. Birk’s Note:  Daniel D. Birk, Note, Jones v. Harris Associates L.P. and the Limits of Public Choice Textualism, 104 NW. U. L. REV. 1587 (2010).

Copyright © 2010 Northwestern University School of Law.

This Article defends judicial issue creation as an essential means of protecting the judiciary’s role in the constitutional structure. As the third branch of government, federal judges are assigned the task of settling the meaning of disputed questions of law not just for the parties, but for all who must comply with the law. Furthermore, because federal judges operate within a common law system in which the precedent in one case establishes the law for all who follow, it is particularly important that those judges accurately state the meaning of the law. To achieve this end, courts must have the power to look beyond the parties’ arguments when failing to do so would lead to an inaccurate or incomplete description of the law.

I.
Law Pronouncement

Since Marbury v. Madison,³ federal courts have the recognized authority to “say what the law is.”⁴ If two parties with a stake in the matter disagree over the interpretation of a statute, regulation, or constitutional provision, courts resolve that conflict by publicly stating not only who wins the case, but also what the law means.⁵

Resolving disputed questions of law is one of the federal judiciary’s essential functions. Although Congress and the president take the lead by enacting statutes and promulgating regulations, their formal role in establishing the meaning of the law ends when courts are asked to determine how a law passed by the political branches applies to a specific case or controversy. Members of Congress may file amicus briefs or publish post-enactment legislative history, but those statements are customarily given no more weight than any other party’s opinion.⁶ Judicial decisions are not open to revision either by Congress or the president, no matter how strongly the political branches disagree with courts’ conclusions about the meaning of a law.⁷ The political branches can, of course, override a judicial decision with which they disagree through the constitutional mechanisms for enacting new law. Unless and until they do so, however, judicial pronouncements are the law for all the citizens to follow.

When the parties fail to fully and accurately describe applicable legal standards, the norm against judicial issue creation clashes with the judiciary’s law-pronouncement power. Because judicial decisions are objective statements about the meaning of law, not statements about how the parties subjectively interpret the law, courts must be able to take notice of legal arguments that the parties fail to see. If litigants could constrain courts through their own truncated or inaccurate depictions of the meaning of statutes, constitutional provisions, and the like, they could effectively wrest this power away from the courts, putting federal judges in the impoverished role of picking and choosing from among the litigants’ interpretations of the law, rather than from their own.⁸

II.
The Interpretive Process

Courts have not only the power to declare the meaning of a law but also the discretion to choose how to interpret it. Neither task should be taken over by nonjudicial actors. To maintain control over the interpretive process, judges must at times step in and add to or alter the parties’ arguments.

For example, if two committed textualist litigants present their divergent views of the plain meaning of a statutory text to an intentionalist judge, that judge can herself explore the legislative history and issue a decision that turns on that history.⁹ That proposition is relatively uncontroversial, because there is no new issue created, and thus no transgression of the norm against judicial issue creation. But what if the litigants fail to argue that the court must go beyond the plain text of the statute to avoid an absurd result, or neglect to cite another provision of the statute containing similar language that sheds light on the disputed provision,¹⁰ or refuse to argue that the court should adopt an interpretation that would avoid a constitutional question?¹¹ The party-presentation principle should give way when the litigants’ interpretive philosophy differs from that of the judge. Otherwise, litigants could force judges to apply the interpretive methodology the litigants prefer.

III.
Judicial Independence

Federal judges are carefully insulated from political pressure so that they can declare the meaning of the law free from outside influence. Judicial independence, and the respect for judicial decisionmaking that accompanies it, would be compromised if courts were required to rule on the law as it is presented to them, rather than as they believe it to be. Life tenure and salary protection ensure that federal judges cannot be threatened or coerced by litigants who want them to ignore specific statutes or to interpret constitutional provisions as the litigants prefer. Yet if courts are not free to engage in issue creation, litigants could accomplish the same results simply by omitting sources, claims, and arguments.

IV.
Precedent and the Common Law

The presumption against judicial issue creation is also incompatible with the power of precedent in a common law system. The federal courts of appeals issue decisions that apply not only to the parties before the court, but that also bind all the judges on that court and all the district courts within that circuit. Lower courts have no choice but to obey even wrongheaded decisions of their superiors. Although a court’s obligation to follow its own precedent is not unyielding, stare decisis is nonetheless a hard doctrine to overcome.¹² Every circuit court has adopted a rule mandating that a panel cannot overturn the decision of a previous panel absent an intervening decision by the Supreme Court.¹³ Even those courts with the authority to overrule precedent, such as courts of appeals sitting en banc and the Supreme Court, rarely upset settled law. Precedent that is viewed as mistaken will nonetheless be followed by these courts absent a “special justification.”¹⁴

Litigants can undermine the power of precedent in two ways. First, if litigants fail to fairly, completely, and accurately describe the law, judicial opinions may themselves contain flawed statements of law that will bind all who come after. Second, if litigants fail to cite and discuss binding precedent, they may evade its application unless the court raises the precedent sua sponte. In either case, allowing the parties’ incomplete presentations to taint judicial decisions is troubling in a common law system in which precedent controls the results in subsequent litigation.

Conclusion

For all of these reasons, federal courts must have the power to raise issues overlooked or ignored by the parties. Yet when judges exercise that power, they are often criticized for violating the norms of the adversarial system, under which the parties are assigned the task of framing the dispute for a passive decisionmaker who then decides the case on the parties’ terms. The criticism is valid when judges raise new issues unrelated to the litigation or decide cases on new grounds without first obtaining the parties’ views. Issue creation can be reconciled with the central tenets of the adversarial system, however, if judges only raise new legal issues when necessary to preserve the integrity of their law-pronouncement function, and if they are careful to structure the proceedings to preserve the parties’ central role.

Adversarialism requires that the parties have an opportunity for a dialectical exchange on the questions at issue in the case, allowing the judge to avoid becoming an advocate for one party or interest. But it does not demand judicial passivity in the face of litigants’ mischaracterization of legal standards. As long as courts provide an opportunity for the parties to respond to new issues (or allow amici or intervenors to do so when the parties decline), then courts can simultaneously protect their power to pronounce on legal questions and preserve the benefits of the adversarial system.

This Article does not contend that judges should be given the power to set their own agenda—a role for which politically insulated judges are ill suited. Judges should limit issue creation to situations in which the parties’ arguments misstate the law or deprive the court of its preferred interpretive methodology. In these circumstances, issue creation is necessary to prevent litigants from undermining the judiciary’s role in the constitutional structure, and it can be accomplished without compromising the essentially partisan nature of dispute resolution in the United States.

Acknowledgments:

Copyright © 2010 Duke Law Journal.

Amanda Frost is an Associate Professor at the American University Washington College of Law.

This Legal Workshop Editorial is based on the following article: Amanda Frost, The Limits of Advocacy, 59 DUKE L.J. 447 (2009).

In The Modernizing Mission of Judicial Review,² Professor Strauss argues that the Supreme Court’s decisions in these areas are efforts to “modernize” the law by facilitating and accommodating developments in popular opinion, rather than actions that merely entrench the justices’ ideological viewpoints or personal whims. A modernizing court decision must satisfy two conditions. First, it invalidates a law only if it “no longer reflects popular opinion” or if “trends in popular opinion are running against it.”³ Second, the Court “must be prepared to change course” if “popular sentiment has moved in a different direction from what the court anticipated.”⁴ In one sense, the Supreme Court is always prepared to respond to developments in popular opinion, because the president and the Senate will use their appointment prerogatives to bring the Court into line. But Professor Strauss describes something different from these external constraints on judicial decisionmaking. A modernizing court itself designs principles and doctrines that are responsive to future developments in popular opinion.

No one can deny that the justices’ beliefs regarding future popular opinion are factors in the Court’s decisionmaking. Justices care about their legacies and future reputations; they would prefer to be remembered as a prescient jurist, such as the first Justice Harlan,⁵ rather than as Roger Taney.⁶ And these forward-looking influences have undoubtedly produced some Supreme Court decisions that fit within the modernizing paradigm that Professor Strauss describes.

But it is hard to accept Professor Strauss’s descriptive claim that modernization is the Court’s “dominant” or “central” approach in its capital-punishment and modern substantive-due-process jurisprudence.⁷ His analysis overstates the Supreme Court’s willingness and ability to accommodate future public opinion at the expense of judicial preferences; the Supreme Court simply has not displayed the level of modesty, or the respect for popular opinion, that Professor Strauss seeks to attribute to it. Nor can the modernization framework reconcile the Court’s capital-punishment and substantive-due-process cases with principles of democratic government. On the normative side, there are reasons to object to modernization as a theory of judicial review in addition to those that Professor Strauss identifies.

 
I.
Capital Punishment

Professor Strauss invokes the Supreme Court’s refusal to declare capital punishment unconstitutional per se in Gregg v Georgia⁸ as evidence of its “willingness to retreat” from its earlier decision in Furman v Georgia.⁹ Furman had declared capital punishment (as then practiced) to be unconstitutional, and prompted thirty-five states to reenact legislation authorizing the death penalty. But Gregg is only a small part of the Court’s post-Furman capital-sentencing jurisprudence. After Gregg, the Court continued to impede capital punishment by allowing multiple rounds of habeas corpus review,¹⁰ and imposing new procedural requirements that hinder prosecutors’ efforts to secure death sentences.¹¹ The Court eventually established contradictory constitutional requirements that states eliminate arbitrariness while giving sentencers unfettered discretion to dispense mercy;¹² this empowered lawyers to mount credible constitutional challenges to any capital-sentencing regime. And the same Court that decided Gregg invalidated mandatory capital-punishment regimes in North Carolina and Louisiana, which the legislatures had enacted only two years earlier in direct response to Furman.¹³ It is hard to characterize these post-Furman obstacles to capital punishment as “modernizing”; popular support for capital punishment grew steadily from 1972 through 1994, and exceeded 60 percent in every Gallup poll taken since 1976.¹⁴ And few, if any, of these rulings suggest that the justices relied on an honest but mistaken belief that popular support for capital punishment was waning, or that the sentencing procedures that they invalidated were “outliers” or relics of a bygone era.¹⁵ Yet the Court continues to impose heavy costs on states with capital-punishment regimes, which allow only a fraction of condemned inmates to be punished in accordance with popular opinion.¹⁶ When one considers the Court’s death-penalty jurisprudence as a whole, the decision in Gregg looks less like an effort to accommodate the popular backlash to Furman and more like a strategy shift by the justices to undermine capital punishment through more subtle, underhanded means.

Atkins v Virginia,¹⁷ which prohibited executions of mentally retarded inmates, is another decision that appears to support Professor Strauss’s modernization thesis. Crucially, Atkins left the task of defining “mental retardation” to legislatures,¹⁸ which established a clear mechanism for the Court to accommodate political-branch pushback. If future popular opinion turns against Atkins, legislatures can establish high (or insurmountable) thresholds for “mental retardation.” This will enable prosecutors to seek capital punishment against mentally retarded defendants, and the justices can reconsider their stance if the condemned inmates challenge their death sentences in court.

Thompson v Oklahoma¹⁹ also appears to be a modernizing decision. The petitioner in Thompson was a fifteen-year-old murderer who argued that his death sentence violated the Eighth Amendment. Four justices wanted to impose a constitutional ban on capital punishment for those who were under sixteen years of age when they committed their crime. But Justice O’Connor refused to join their opinion, and opted for a narrower holding that prohibited fifteen-year-old offenders from being executed pursuant to a capital-punishment statute that fails to specify a minimum age. This allowed future legislatures to respond by explicitly authorizing capital punishment for fifteen-year-old murderers, in the event that the Court’s decision had misconstrued the “evolving standards of decency” in American society. Like Atkins, Justice O’Connor’s approach in Thompson provided a mechanism to accommodate political-branch pushback in the near or distant future.

Yet Atkins and Thompson show that Roper v Simmons²⁰ and Kennedy v Louisiana²¹ cannot possibly fit within the modernization framework that Professor Strauss describes. In those cases, the Court decreed an end to executing juveniles and child rapists, but left no mechanism for future cases that could test the Court’s “willingness to retreat.” Even if a large number of legislatures defied the Court and enacted statutes authorizing the death penalty for juveniles and child rapists, every trial-court judge, bound to follow the Supreme Court’s rulings,²² would bar prosecutors from seeking capital punishment in those cases. Without the ability to secure a death sentence against a juvenile or a child rapist at trial, there would never be an Article III “case” that would enable the Supreme Court to reconsider Roper or Kennedy. Even if the justices are “willing to retreat” from these decisions in the future, they would be unable to do so.

If the Roper and Kennedy Courts were truly engaged in modernization, they would have adopted the approach that Justice O’Connor used in Thompson: invalidate the existing death-penalty statutes, but leave the door open for legislatures to reauthorize capital punishment for juveniles and child rapists. The justices were aware that this was an available option, there was Court precedent to support it, yet they chose not to use it. One can only conclude that the purpose and effect of these decisions were to entrench the justices’ ideological preferences, rather than to accommodate present or future popular opinion.²³

 
II.
Substantive Due Process

Here, too, Professor Strauss is too quick to characterize the Court as willing to accommodate political pushback. Although Lawrence v Texas²⁴ disclaims any ruling on same-sex marriage, or other gay-rights issues, it also contains broad, sweeping language that could easily be read to support more expansive constitutional rights for homosexuals.²⁵ Professor Strauss predicts that this “open-ended” opinion will enable the Court to decide future gay-rights controversies in accordance with evolving trends in popular opinion. He interprets the Court’s abortion jurisprudence in a similar manner. Despite Roe v Wade’s²⁶ rigidity, Professor Strauss believes that Planned Parenthood v Casey’s²⁷ “undue burden” test is a device to accommodate future developments in public opinion.

But one could just as easily surmise that the vague language in Lawrence and Casey is designed to accommodate judicial preferences at the expense of future popular opinion. Applications of loose standards, or open-ended opinions, are impossible to falsify. This empowers the justices to decide cases in accordance with their own preferences, as they can invoke Court precedents to support almost any result. And they need not spell out the full range of their ambitions until later, which avoids the public backlash that a more transparent or rule-like decision might provoke.

We have at least one data point that corroborates this view of the Court’s substantive-due-process jurisprudence. After Casey established the undue-burden regime, thirty-one states enacted laws against the procedure known as “partial-birth abortion,” and refused to allow broad exceptions when the mother’s health was endangered. Indeed, more states had outlawed partial-birth abortion than the juvenile death penalty. Yet Stenberg v Carhart²⁸ invalidated these statutes, disproving any notion that the vague “undue-burden” test was meant to accommodate future trends in popular opinion. Instead, the vagueness empowered the Court to impose its own preferences against the political branches. As for “willingness to retreat,” the Court later upheld a federal statute banning the procedure,²⁹ but that was only after the Court’s membership had changed. And the dissenters in Gonzales v Carhart,³⁰ far from showing a “willingness to retreat” in the face of this federal statute, threatened to overrule the majority’s decision at the earliest opportunity, without any regard for how future public opinion might evolve.³¹ None of this is “modernization”; the justices are voting according to their own views without any regard to trends in popular opinion. If “modernization” were driving the Supreme Court’s substantive-due-process decisions, then one would expect the Court to have invalidated Florida’s unique-in-the-nation ban on adoptions by homosexual parents,³² rather than the partial-birth abortion bans that thirty-one states had enacted.

 
III.
Should Courts Modernize?

Professor Strauss expresses some doubts as to whether modernization is a normatively desirable role for the Court to play.³³ There are additional reasons to look askance at modernization as a theory of judicial review.

First, a modernizing court discourages compromise, moderation, and nuance in the political branches. Consider moderate conservatives who oppose same-sex marriage, yet support (or at least tolerate) other legal reforms, such as civil unions, that give some legal recognition to same-sex couples. These individuals must confront the very real possibility that a modernizing court will use their toleration for civil unions as evidence to support a constitutional right to same-sex marriage. Similar quandaries exist for moderates who support capital punishment but want it used sparingly. The rarity of juvenile executions led to their extinction by court decree; capital punishment might suffer a similar fate if elected officials allow the execution rate to fall. Former Attorney General John Ashcroft was criticized for pursuing death sentences in federal prosecutions against the recommendation of US attorneys.³⁴ Yet such behavior is rational in a world where the Supreme Court anticipates trends in public opinion and entrenches them as constitutional law, even if it produces wasted government resources and gratuitous loss of life.

Modernization forces politicians, interest groups, and informed citizens to extremes. It induces them to oppose beneficial reforms solely out of fear that such reforms might cause a modernizing Court to impose a more radical solution that they oppose.³⁵ “Slippery slope” concerns, so often contrived or exaggerated in political discourse,³⁶ become real and salient with a modernizing court. Interest groups will fight with even more ferocity when they know the Supreme Court will use a political compromise as evidence that the country is ready for more radical change—because yielding an inch today may surrender a mile tomorrow. None of this is conducive to rational policymaking.

Modernizing courts also erode the protections that the Constitution confers on political minorities. The Constitution does not establish rule by national political majorities (much less emerging majorities); it establishes a federal republic that provides extensive protections to political minorities. The federal government’s powers are confined to the enumerated provisions in Article I; this enables national political minorities to migrate to local jurisdictions with more agreeable laws. Article I’s bicameralism-and-presentment requirements effectively create supermajoritarian requirements for national political majorities that seek to impose their will. And Article V’s amendment process establishes an extraordinary supermajority hurdle before a political majority can constitutionalize its preferences and remove issues from the normal political process. All of these provisions are designed to protect political minorities, empowering them to block majoritarian initiatives, or to insist on compromise in exchange for their assent.

The modernization theory enables the Supreme Court to circumvent these protections from national-majority rule by constitutionalizing emerging trends in popular opinion, in the guise of interpreting vague constitutional language such as “cruel and unusual punishments” or “due process of law.”³⁷ This not only leads to the “bias toward centralization”³⁸ that Professor Strauss describes, it also threatens to undermine the rule of law. Almost everyone acknowledges that constitutional text, at the very least, serves as a “focal point” that enables a diverse society to agree on what qualifies as law.³⁹ Today’s national majorities accept the Constitution’s limits on national-majority rule on the understanding that those limits will protect them if they become a national minority in the future. But when the Supreme Court uses loose construction to subvert the explicit constitutional limits on national-majority rule (or emerging-majority rule), then a national majority’s decision to accept constitutional limits on its power begins to seem less like a social contract and more like an act of unilateral disarmament. There is far less risk of this happening when courts use judicial review merely to correct defects that undermine the lawmaking processes that the Constitution establishes,⁴⁰ to enforce established and accepted understandings of constitutional provisions, or to adopt a plausible (even if disputed) interpretation of the Constitution’s original meaning. Indeed, many, though not all, of the modernizing cases that Professor Strauss describes can be defended on such grounds.⁴¹ It is quite another matter, however, when the Supreme Court transparently circumvents the explicit constitutional limits on emerging-majority rule and the Constitution’s criteria for creating or changing federal law. The danger is that those who find themselves on the losing end of such modernizing court decisions will be less willing to uphold their end of the bargain by adhering to the Constitution’s limits on emerging-majority rule when they control one of the other branches of government.⁴² Indeed, one need only read the Bush Administration’s legal memoranda to see how the executive branch, just like the Supreme Court, can use loose interpretation to erode the Constitution’s limits on emerging-majority rule and its procedures for enacting or amending federal law.⁴³ One should expect the constitutional focal points that protect political minorities from national-majority rule to further unravel if the public tolerates, or if academic elites rationalize, the notion that “modernization” is a proper or legitimate role for the Supreme Court to play.

Acknowledgments:

Copyright © 2009 University of Chicago Law Review.

Jonathan F. Mitchell is Assistant Professor of Law, George Mason University School of Law.

Thanks to Richard Epstein, Ashley Keller, Adam Mortara, David Schleicher, and David Strauss for comments.

This approach, which might be called modernization, has not been fully avowed by the Supreme Court, and it does not characterize every area of constitutional law. But it is the dominant approach in many important areas. Modernization is an especially useful way of understanding the Supreme Court’s substantive due process decisions of the last half-century—decisions concerning reproductive freedom and intimate relationships—and of seeing why those decisions are, contrary to widespread belief, fundamentally different from the substantive due process decisions of the early twentieth century. Modernization is also central to the interpretation of the Eighth Amendment’s prohibition on cruel and unusual punishment and to the decisions, interpreting the Equal Protection Clause, that impose limits on gender discrimination. In many other areas—other aspects of the Equal Protection Clause, the Commerce Clause, the religion clauses, constitutional criminal procedure—modernization is an important part of the story.

Modernization has two components. The first is that the courts will strike down a statute if they believe it no longer reflects popular opinion or if the trends in popular opinion are running against it. Modernization tries to anticipate developments in the law, invalidating laws that would not be enacted today or that will soon lose popular support. Second, as an important corollary, a modernizing court must be prepared to change course—and uphold a statute that the court previously struck down—if it becomes apparent that popular sentiment has moved in a different direction from what the court anticipated.

Modernization is, I believe, an instinctive, defensive response by the courts to the persistent criticism that judicial review cannot be reconciled with the core principles of democratic government. Whether modernization is a good development, all things considered, is uncertain; I have my doubts. But whatever its faults, there is reason to believe that the modernizing approach to judicial review is, today, central to constitutional law.

 
I.
Modernization in Action

A.     Cruel and Unusual Punishment

The most overt adoption of the modernization approach has occurred in cases interpreting the Cruel and Unusual Punishment Clause of the Eighth Amendment. In a series of decisions over the last twenty years concerning the constitutionality of the death penalty, the Supreme Court has considered the critical question to be whether the challenged form of punishment was losing support in public opinion. The Court has considered, for example, whether the states that allowed the death penalty in certain circumstances were outliers; whether that form of punishment had fallen into disuse in practice; and whether the trend was to disapprove of it.¹

The other component of modernization—the willingness to back down if the political process pushes back—is implicit in these opinions, and it was dramatically illustrated in an earlier Eighth Amendment episode. In 1972, in Furman v Georgia,² the Court declared that capital punishment, as then practiced in the United States, was administered so arbitrarily and unpredictably that it was “cruel and unusual” and therefore unconstitutional.³ At the time, the Court had reason to believe that popular support for capital punishment in the United States was diminishing; that view was reflected in the Furman opinions and, even more explicitly, in the private papers of some of the justices.⁴ Capital punishment, the Court suggested, had so little support that its imposition was basically a matter of happenstance.⁵

Within four years, thirty-five states had reenacted death penalty statutes drafted specifically to address the concern about excessive discretion and arbitrariness.⁶ In 1976, the Court upheld some of these statutes, effectively reinstating capital punishment in the United States.⁷ The Court’s treatment of capital punishment—its emphasis on trends in the law, coupled with a willingness to retreat—illustrates both aspects of the modernization paradigm.

 
B.     Sex Discrimination and the Equal Protection Clause

Modernization has also—less obviously—become the governing approach to laws that discriminate on the basis of sex. The black-letter standard for judging sex classifications under the Equal Protection Clause requires that such a classification be “substantially related” to “important governmental objectives.”⁸ But sex classifications are sometimes unconstitutional even if they do seem to have a substantial relationship to an important objective. The Supreme Court has, for example, twice invalidated statutes that presumed that widows, but not widowers, were dependent on the earnings of their deceased spouses.⁹ But that presumption was statistically correct, and the classification does have a substantial relationship to an important objective—the objective of protecting dependent surviving spouses without either incurring large administrative costs or spending money on spouses who are not dependent.

The more plausible reason for the unconstitutionality of these sex-based classifications is suggested by some of the other things that the Court has said—that the statutes rest on generalizations that, while they may be statistically true, embody “archaic,” “traditional,” or “stereotyped” views about men’s and women’s roles, or “old notions” that are inconsistent with “contemporary reality.”¹⁰ These terms reveal that what’s actually going on is modernization. The problem with the sex-based classifications that the Court struck down was not that they failed to promote important objectives; the problem was that those classifications were the product of a bygone era and were no longer in keeping with current views—”contemporary reality”—about sex roles. By the same token, when the Supreme Court has upheld sex classifications, it has sometimes suggested that it was doing so because it had confidence that the classification was the product of a present-day decision.¹¹

In its most important sex discrimination case—United States v Virginia,¹² which declared unconstitutional the Virginia Military Institute’s exclusion of women students—the Court emphasized both VMI’s outlier status (there was only one other all-male public college in the country¹³) and the fact that VMI’s single-sex policy had been adopted at a time when women were routinely considered unfit for many occupations.¹⁴ At first glance, that latter point seems to assume a kind of guilt by historical association. The people who thought women were unfit to be lawyers, for example, were wrong; but it does not follow that the people who thought that women could not be accommodated in a certain kind of military training were also wrong. The modernization approach, though, makes sense of the Court’s emphasis on this point. The problem with the exclusion of women from VMI was not that it was based on mistaken factual claims about the effect that the admission of women would have on military education—the courts, in reality, are not well equipped to evaluate those claims—but rather that the decision to exclude women from VMI was made in an era when attitudes were so different from what they are today.¹⁵

The Court’s opinion in Virginia also carefully left open the possibility that the Court would allow sex segregation in education in certain circumstances—a rough parallel to what the Court did in the capital punishment cases, where it left the door open for state legislation that addressed the Court’s concerns.¹⁶ The Court’s concern in Virginia was not with the justifiability of sex-segregated education per se, but with whether a policy of sex-segregated education was modernized—whether it was the product of current ways of thinking and not a holdover from earlier times.

 
C.     Substantive Due Process

Modernization is the central unifying theme of the substantive due process cases that have been decided in the last forty years. These cases have concerned subjects—reproductive freedom and intimate relationships—that, like sex roles (and, the Furman Court mistakenly thought, capital punishment), have been the subject of rapidly changing attitudes. When the Court has struck down a law, it has been either an outlier,¹⁷ a law that was seldom enforced and unrepresentative of national trends,¹⁸ or all of those things.¹⁹ On the other side of the coin, when Washington v Glucksberg²⁰ rejected a claim that there is a substantive due process right to physician-assisted suicide, the opinion emphasized all the ways in which the statute forbidding assisted suicide did not need to be modernized: it had recently been reenacted; many states were in the process of reconsidering physician-assisted suicide laws; and nearly every state had reaffirmed its prohibition against physician-assisted suicide.²¹

Because these decisions referred to current trends in the law, they left open the possibility that the Court might revisit these issues if it had miscalculated and the political process pushed back. Lawrence is especially revealing in this respect. The opinion in Lawrence was, conspicuously, written in an open-ended fashion that allowed the Court to wait and see what the reaction would be. The opinion allows for future expansion of the right that the Court established, to strike down other forms of discrimination against gays, including prohibitions against gay marriage. But the opinion would also allow the Court to confine the holding narrowly to the relatively uncontroversial case of laws forbidding same-sex sodomy.

 
II.
Should Courts Modernize?

Modernization, like every other approach to constitutional interpretation, is not “value-free.” A judge engaged in modernization will make judgments, not just about whether a law is out of date, but also about whether it ought to be modernized. That is, the question is not just what the trend in the law is, but whether it is a good trend that should be furthered. In the capital punishment cases, the Court has been explicit in saying that it is relying not just on its perception of the direction in which the law is moving but also, in part, on its own judgment about whether the laws are sensible and fair. It is not hard to see similar judgments beneath the surface in the other modernizing cases.

For this reason, among others, it would be a mistake to think that “modernization” is always a good thing; the term is perhaps misleading in that respect. If the trends in the law are bad, judges may be unwilling to resist them; or they may even approve of the bad trends. The Civil Rights Cases²² of 1883, which struck down important post-Civil War civil rights laws, were modernizing decisions: the nation’s interest in protecting the rights of the newly freed ex-slaves was rapidly receding, and the Court ratified that trend.²³

The question remains, though, whether modernization is an acceptable institutional role for the courts to play. On this issue, the modernizing approach to judicial review can be criticized on at least two grounds. The first is that it is absurd for unelected judges to do the quintessential work of elected politicians—discerning trends in public opinion. There is something to this criticism, but less than meets the eye. It has long been understood that common law courts shape their holdings in accordance with the trends they perceive in the law. A common law decision, of course, can be overturned by statute; but that difference between common law and constitutional law diminishes when a modernizing court is willing to retreat if it is wrong about popular opinion.

The problems with modernization are more subtle. One problem is that a modernizing decision can be either self-validating or self-nullifying: self-validating if it gives insuperable advantages of inertia and legitimacy to one side of a contested issue; self-nullifying if it precipitates a backlash by making salient an issue that the politicians had successfully obscured.

The more far-reaching question, though, is whether the modernization approach is too tempting and causes the courts to be too willing to sway with the political winds. The two most famous cases of modern times—Brown v Board of Education²⁴ and Roe v Wade,²⁵ both modernizing decisions—illustrate this point. Roe was decided at a time when the trend in the nation was toward liberalizing abortion laws, and the statute invalidated in Roe—which allowed abortions only to save the life of the mother—was relatively restrictive; at the time nearly half the states in the country allowed abortions when necessary to protect the mother’s health, not just her life. Of course, the opinion in Roe swept more broadly, and it did not seem to allow for pushback from the political process. But as the controversy over abortion continued, the Court modified Roe and allowed various other kinds of restrictions on abortions, ultimately establishing a regime that is a plausible political compromise but arguably does not reflect a sufficiently coherent or principled view.

Brown, also, was a modernizing decision in important respects. Popular sentiment against racial segregation had been building for decades, and the justices regarded segregation as an anachronism. The Court’s second Brown decision²⁶—famous for saying that desegregation should be accomplished only “with all deliberate speed”—reflected the sensitivity to political reaction that is characteristic of modernization. Again, the questions are whether the Court was too sensitive, and whether desegregation might have proceeded more smoothly if the Court had not signaled a willingness to slow down when confronted.

The courts will, inevitably, respond to movements in public opinion; that is a staple of the political science literature on the courts, and the appointments process, among other things, makes that result inevitable. But it does not follow that the courts best serve the country when, as the modernization approach prescribes, they make it their mission to anticipate and facilitate—rather than correct—the operations of democracy.

Acknowledgments:

Copyright © 2009 University of Chicago Law Review.

David A. Strauss is Gerald Ratner Distinguished Service Professor of Law, University of Chicago Law School.

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.

 
I.
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.

 
II.
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.

 
III.
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.

 
IV.
Conclusion

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.

Acknowledgments:

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