Treating like subdecisions alike: The scope of stare decisis as applied to judicial methodology

Columbia Law Review

Volumn 108, Issue 3, 2008, Pages 681-715

  Connors, Jordan Wilder ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 43749097203     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (330)

1. Stare decisis et non quieta movere (stare decisis for short) literally means "[t]o stand by things decided, and not to disturb settled points." Black's Law Dictionary 1443 (8th ed. 2004).
2. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854 (1992).
3. Seminole Tribe v. Florida, 517 U.S. 44, 67 (1996);
4. see also Henry P. Monaghan, Taking Supreme Court Opinions Seriously, 39 Md. L. Rev. 1, 22 & n.78 (1979) [hereinafter Monaghan, Supreme Court Opinions] (arguing that stare decisis binds Court to "all points of significance").
5. See infra note 36 and accompanying text.
6. See infra notes 75-85 and accompanying text (discussing statutory interpretation).
7. See, e.g., Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747, 801 n.204 (1999) (referring to Justices Scalia and Thomas as among "[t]oday's foremost judicial champions of textualism");
8. Louis D. Bilionis, Grand Centrism and the Centrist Judicial Personam, 83 N.C. L. Rev. 1353, 1366 (2005) (referring to "Justice Kennedy's grand centrism");
9. Adam David Elfenbein, Patterson v. Shumate. Interpretive Error, 66 Am. Bankr. L.J. 439, 445 (1992) (calling Justice Stevens "a champion against mechanical statutory interpretation");
10. Kathryn A. Perales, Note, It Works Fine in Europe, So Why Not Here? Comparative Law and Constitutional Federalism, 23 Vt. L. Rev. 885, 903 (1999) (referring to Justice Breyer as "champion[] of pragmatism").
11. Senator Chuck Grassley asked then-Judge Alito: "What do you think about judges allowing their own political and philosophical views to impact on any jurisprudence? Second, do you believe that there is any room for a judge's own value or personal beliefs when he or she interprets the Constitution?" Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 355 (2006) (statement of Sen. Charles E. Grassley, Member, S. Comm. on the Judiciary). At then-Judge Roberts's confirmation hearing, Senator Orrin Hatch posed the following question to the nominee: "Some of the philosophies [discussed in a book by Cass Sunstein] were whether a judge should be an originalist, a strict constructionist, a fundamentalist, a perfectionist, a majoritarian or a minimalist. Which of those categories do you fit in?" Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 158 (2006) (statement of Sen. Orrin G. Hatch, Member, S. Comm. on the Judiciary).
12. See, e.g., Wendy E. Parmet, Plain Meaning and Mitigating Measures: Judicial Interpretations of the Meaning of Disability, 21 Berkeley J. Emp. & Lab. L. 53, 82 (2000) (predicting that "textualist courts" will more likely construe Americans with Disabilities Act against claimed disability);
13. Jonathan Turley, "When in Rome": Multinational Misconduct and the Presumption Against Extraterritoriality, 84 Nw. U. L. Rev. 598, 661 n.400 (1990) (arguing that "more formalist court" would have interpreted Endangered Species Act differently than court that decided Defenders of Wildlife v. Hodel, 851 F.2d 1035 (8th Cir. 1988)).
14. See, e.g., Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev. 845 passim (1992) (promoting careful use of legislative history in statutory interpretation);
15. Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation 3, passim (Amy Gutmann ed., 1997) (advocating textualist approach to statutory interpretation).
16. See, e.g., Holy Trinity Church v. United States, 143 U.S. 457, 464-65 (1892) (invoking legislative history to overcome plain meaning of statutory text).
17. For an explanation of why statutes receive the greatest stare decisis effect, see Edward H. Levi, An Introduction to Legal Reasoning 23 (1949) (arguing that legal reasoning applied to statutes should "attempt to fix the meaning of the word");
18. see also Amy Coney Barrett, Statutory Stare Decisis in die Courts of Appeals, 73 Geo. Wash. L. Rev. 317, 321 (2005) ("This special treatment of statutory precedent fits into a system in which the Supreme Court varies the strength of the precedent according to the source of law that the precedent interprets. Cases interpreting statutes, as we have been discussing, receive stronger-than-normal stare decisis effect.");
19. William N. Eskridge, Jr., Overruling Statutory Precedents, 76 Geo. L.J. 1361, 1367 (1988) (exploring congressional practices leading to "super-strong presumption for most statutory precedents");
20. Lawrence C. Marshall, "Let Congress Do It": The Case for an Absolute Rule of Statutory Stare Decisis, 88 Mich. L. Rev. 177, 182-83 (1989) (noting continuing force of absolute statutory stare decisis despite Court's occasional unfaithfulness to it).
21. Levi, supra note 11, at 23.
22. The application of stare decisis to constitutional interpretation, on the other hand, involves some but not all of the same arguments related to statutory interpretation. See infra Conclusion.
23. As an initial matter, this Note attempts to simplify this discussion by limiting its inquiry to the Supreme Court and the Court's treatment of horizontal stare decisis. Horizontal stare decisis is the binding effect that Supreme Court opinions have on subsequent cases before the Supreme Court.
24. Helvering v. Hallock, 309 U.S. 106, 119 (1940).
25. See William S. Consovoy, The Rehnquist Court and the End of Constitutional Stare Decisis: Casey, Dickerson and the Consequences of Pragmatic Adjudication, 2002 Utah L. Rev. 53, 66 (2002);
26. see also Sir Matthew Hale, The History of the Common Law of England 45-46 (Charles M. Gray ed., Univ. Chi. Press 1971) (1713) (discussing stare decisis in English common law).
27. See infra Part I.D.
28. See Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to die Rehnquist Court, 52 Vand. L. Rev. 645, 661 (1999) (noting English common law judges had duty to provide some rationale for disregarding prior case). Professor Lee's article provides an excellent description of the development of the stare decisis doctrine in the 18th and 19th century United States, which proved helpful in writing this section.
29. William Blackstone, 1 Commentaries *69.
30. Consovoy, supra note 16, at 66;
31. see also Wallace Jefferson, Stare Decisis, 8 Tex. Rev. L. & Pol. 271, 271-72 (2004) (providing background on historical foundations of stare decisis).
32. Consovoy, supra note 16, at 67-69;
33. see also Lee, supra note 18, at 665 (quoting Letter from James Madison to Charles Jared Ingersoll (June 25, 1831), in The Mind of the Founder: Sources of the Political Thought of James Madison 497 (Marvin Meyers ed., rev. ed. 1973)). Madison supported his position using two arguments. First, Madison stated that a stable society required that "the rules of conduct of its members should be certain and known."
34. Id. This would not be so if judges were allowed to individually interpret every law.
35. Id. Second, once the judiciary interprets a law, and the legislature accepts that interpretation, it can be fairly said that the legislature has sanctioned the rule. Id.
36. As William Lile argues: Under the common law system . . . lacking as it does a scientifically constructed code as a basis, or, indeed, any code in a true sense, we are ex necessitate more dependent on the influence of previous decisions. If we strip these of all mandatory force, our unwritten law would be evidenced by no audioritative declaration, and every court, from the lowest to the highest, would be law unto itself. The rule of stare decisis is, therefore, a rule of necessity and a natural evolution from the very nature of our institutions. W.M. Lile, Some Views on the Rule of Stare Decisis, 4 Va. L. Rev. 95, 97 (1916);
37. cf. Roscoe Pound, Interpretations of Legal History 1 (1923) ("Law must be stable and yet it cannot be still.").
38. U.S. Const. art. III, § 1.
39. This would reflect the originalist view of stare decisis. For a court decision reflecting such a view, see Judge Richard Arnold's opinion for the Eighth Circuit in Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated as moot on reh'g en banc, 235 F.3d 1054 (8th Cir. 2000). Judge Arnold's opinion rested on his view that the rule of stare decisis was inherent in the Framers' conception of the "judicial power" delegated to the courts by Article III.
40. Id. at 900. Underlying the Framers' conception of the judicial power was, he argued, a clear and well-established view that respect for precedent lay at the heart of the judicial function.
41. Id. Despite the fact that Judge Arnold's opinion was vacated en banc, his decision "continues to have persuasive force,"
42. Hart v. Massanari, 266 F.3d 1155, 1159 (9th Cir. 2001), and at least one other federal court has agreed with its reasoning. See Alshrafi v. Am. Airlines, Inc., 321 F. Supp. 2d 150, 159-60 nn.9-10 (D. Mass. 2004).
43. For academic commentary on the originalist view of stare decisis, see William D. Bader, Some Thoughts on Blackstone, Precedent, and Originalism, 19 Vt. L. Rev. 5, 9-11 (1994) (arguing that "Blackstonian style of reverence for precedent[ ] was rooted in Article III");
44. Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204, 204 (1980) (describing strict textualism and strict intentionalism as two branches of strict originalism);
45. Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 Geo. L.J. 1765, 1766 (1997) [hereinafter Dorf, Original Meaning] ("Under [strict intentionalism], any departure from the understandings of those discrete periods [when die Constitution was ratified or amended] robs constitutional interpretation of its claim to legitimacy.");
46. Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum. L. Rev. 723, 754-55 (1988) [hereinafter Monaghan, Stare Decisis] (noting effect of originalist understanding on power of Congress to limit stare decisis).
47. See Joseph Story, Commentaries on the Constitution of the United States 126-27 (Carolina Academic Press 1987) (1833) ("A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles.");
48. Harlan F. Stone, The Common Law in the United States, 50 Harv. L. Rev. 4, 6 (1936) (describing stare decisis as "the most significant feature of the common law, past and present, and the essential element in its historic growth").
49. See 1 Laurence H. Tribe, American Constitutional Law 248-49 (3d ed. 2000) ("By its very design, the Constitution guarantees the impermanence of judicial precedent.");
50. Laurence H. Tribe & Michael C. Dorf, On Reading the Constitution 63-64 (1991) [hereinafter, Tribe & Dorf, Reading the Constitution] (arguing that Constitution is irreconcilable with itself in some instances and that Court should use "common law method of case-by-case formulation and reformulation").
51. See Cass R. Sunstein, Why Does the American Constitution Lack Social and Economic Guarantees?, in American Exceptionalism and Human Rights 90, 98 (Michael Ignatieff ed., 2005) ("Constitutional change is often a product ... of interpretation, leading to new understandings of old provisions.").
52. See generally William N. Eskridge, Jr., Dynamic Statutory Interpretation (1994) (explaining and advocating adoption of dynamic interpretation).
53. See Richard B. Cappalli, The Common Law's Case Against Non-Precedential Opinions, 76 S. Cal. L. Rev. 755, 759 (2003) (collecting authorities on this issue);
54. Gary Lawson, Controlling Precedent: Congressional Regulation of Judicial Decision-Making, 18 Const. Comment. 191, 194-95 (2001) (arguing that "Congress may not by statute tell the federal courts whether or in what ways to use precedent" as "Congress does not have the power to tell die federal courts how to go about their business of deciding cases");
55. Bradley Scott Shannon, May Stare Decisis Be Abrogated by Rule?, 67 Ohio St. L.J. 645, 650-51 (2006) (finding that stare decisis cannot be abrogated by court rule).
56. See Dorf, Original Meaning, supra note 24, at 1766 ("[T] here are very few strict originalists . . . .").
57. Brest, supra note 24, at 204-05, 214.
58. Legal scholars are divided on the question of whether a statute or judicial rule that completely abrogated the doctrine of stare decisis would be constitutional. Compare Thomas Healy, Stare Decisis as a Constitutional Requirement, 104 W. Va. L. Rev. 43, 120-21 (2001) (concluding that although rule abrogating stare decisis in all cases might be unconstitutional, properly structured rule abrogating stare decisis only in certain cases would be constitutional),
59. and Thomas R. Lee & Lance S. Lehnof, The Anastasoff Case and Judicial Power to "Unpublish" Opinions, 77 Notre Dame L. Rev. 135, 173 (2001) (concluding that various federal appellate court nonprecedential decision rules are constitutional),
60. with Polly J. Price, Precedent and Judicial Power After the Founding, 42 B.C. L. Rev. 81, 118 (2000) (concluding that such rules are unconstitutional).
61. See Lee J. Strang, An Originalist Theory of Precedent: Originalism, Nonoriginalist Precedent, and the Common Good, 36 N.M. L. Rev. 419, 423-24 (2006) (detailing various values arguably advanced by stare decisis).
62. I do not present an exhaustive list but only the most common justifications for stare decisis.
63. Carol M. Rose cogently links predictability with fairness. Carol M. Rose, Planning and Dealing: Piecemeal Land Controls as a Problem of Local Legitimacy, 71 Cal. L. Rev. 837, 907-08 (1983).
64. Payne v. Tennessee, 501 U.S. 808, 827 (1991); see also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 869 (1992) ("A decision to overrule [precedent at issue] under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law.");
65. Robert C. Post, Constitutional Domains: Democracy, Community, Management 30 (1995) ("If the Constitution predominates because it is law, its interpretation must be constrained by the values of the rule of law, which means that courts must construe it through a process of reasoning that is replicable, that remains fairly stable, and that is consistently applied." (footnote omitted)).
66. See Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review 169 (1999) (arguing that stare decisis "ensure[s] that the judiciary follows known rules [and] does not make arbitrary decisions");
67. Healy, supra note 31, at 108, 111 (arguing that stare decisis promotes fairness and equality by "treating like cases alike");
68. Frederick Schauer, Precedent, 39 Stan. L. Rev. 571, 572, 595-97 (1987) ("To fail to treat similar cases similarly, it is argued, is arbitrary, and consequently unjust or unfair.");
69. Strang, supra note 32, at 424 n.40 ("Persons inevitably order their lives based on the legal rules enunciated in previous cases and could suffer harm if those rules are regularly or lightly changed.").
70. For criticism of the claim that stare decisis advances equality, see Larry Alexander, Constrained by Precedent, 63 S. Cal. L. Rev. 1, 9-13 (1989) ("[T] here is no intertemporal equality value of sufficient weight to support precedential constraint . . . .").
71. Benjamin N. Cardozo, The Nature of the Judicial Process 149 (1921).
72. See Whittington, supra note 36, at 169 (noting that respect for precedent helps ensure judiciary "is not forced constantly to reconsider the same issues but can move on to new concerns");
73. Healy, supra note 31, at 109 ("By basing their decisions on precedent, courts avoid the need to reexamine all legal principles from scratch.");
74. Monaghan, Stare Decisis, supra note 24, at 744 (explaining that, because of stare decisis, "[m]any constitutional issues are so far settled that they are simply off the agenda").
75. Strang, supra note 32, at 424 ("By allowing judges (and potential and actual litigants) to concentrate on one or a handful of issues in a given case, instead of relitigating all potential issues in a case, stare decisis promotes judicial efficiency.").
76. See id. (" [T]he extent to which these related Rule of Law values are advanced [by stare decisis] depends on the constraining force of precedent.").
77. Id.
78. Id.
79. Mary G. Algero, The Sources of Law and the Value of Precedent: A Comparative and Empirical Study of a Civil Law State in a Common Law Nation, 65 La. L. Rev. 775, 785 (2005) ("The forty-nine states in the United States, other than Louisiana, as well as the United States federal court system follow a version of die doctrine of stare decisis that is similar to the English respect for precedent and its consideration of precedent as a source of law.").
80. Cass R. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 790-91 (1993).
81. Id. at 745-49 (describing use of anological reasoning in law)
82. Lewis F. Powell, Jr., Stare Decisis and Judicial Restraint, 47 Wash. & Lee L. Rev. 281, 284 (1990).
83. Lile, supra note 22, at 99; see also Cardozo, supra note 37, at 116 (describing process of adhering to precedent as "extract[ing] from the precedents the underlying principle, the ratio decidendi . . . [and] then determining] the path or direction along which the principle is to move and develop, if it is not to wither and die").
84. Monaghan, Supreme Court Opinions, supra note 3, at 22.
85. One commentator calls this a "hybrid model" of stare decisis because precedents are entrenched but not completely. Andrew T. Solomon, A Simple Prescription for Texas's Ailing Court System: Stronger Stare Decisis, 37 St. Mary's L.J. 417, 430 (2006). However, most courts in the United States that adhere to stare decisis recognize limited circumstances where precedents should be overruled. Id. at 430-31.
86. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 864 (1992) ("[A] decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided.");
87. Payne v. Tennessee, 501 U.S. 808, 842 (1991) (stating that stare decisis "carries such persuasive force that we have always required a departure from precedent to be supported by some 'special justification'" (citations omitted));
88. see also William N. Eskridge, Jr., The Case of the Amorous Defendant: Criticizing Absolute Stare Decisis for Statutory Cases, 88 Mich. L. Rev. 2450, 2453-66 (1990) (discussing justifications for overturning precedent);
89. Monaghan, Stare Decisis, supra note 24, at 757 ("[Precedent binds absent a showing of substantial countervailing considerations.").
90. For an account of how this standard of "sufficiency" has changed in the Court's rhetoric over time, see generally Andrew M. Jacobs, God Save This Postmodern Court: The Death of Necessity and the Transformation of the Supreme Court's Overruling Rhetoric, 63 U. Cin. L. Rev. 1119 (1995).
91. Christopher P. Banks, Reversals of Precedent and Judicial Policy-Making: How Judicial Conceptions of Stare Decisis in the U.S. Supreme Court Influence Social Change, 32 Akron L. Rev. 233, 252 tbl.5 (1999).
92. Id. at 252 tbl.5, 253 tbl.6.
93. See Robert E. Keeton, Venturing to Do Justice 15 (1969) ("Restraint in exercising die judicial power to overrule precedents is essential to the stability of law. Yet abstention from exercising this power defeats stability itself.");
94. see also Amanda L. Tyler, Continuity, Coherence, and the Canons, 99 Nw. U. L. Rev. 1389, 1417 (2005) ("[W]here a precedent does not 'fit' with the surrounding legal landscape, there will be strong countervailing reasons to revisit the original interpretation. Thus . . . [s]tatutory precedents should be abandoned only where wholly out of sync with the legal fabric . . . .").
95. Casey, 505 U.S. at 854 (citing Burnet v. Coronado Oil Sc Gas Co., 285 U.S. 393, 405-11 (1932) (Brandeis, J., dissenting)).
96. Richard Fallon suggests that one purpose of stare decisis is settling certain legal questions, which is reminiscent of Stephen Holmes's discussion of the virtue of entrenchment associated with the Constitution. Compare Richard H. Fallon, Jr., Stare Decisis and the Constitution: An Essay on Constitutional Mediodology, 76 N.Y.U. L. Rev. 570, 573 (2001) (explaining that among "greatest effects of stare decisis is to justify the Court in treating some questions as settled," which "liberates the Justices from . . . obligation to reconsider every potentially disputable issue as if it were being raised for the first time"),
97. with Stephen Holmes, Passions and Constraint: On the Theory of Liberal Democracy 215-18 (1995) (arguing that constitutions take contentious issues off table).
98. See Payne v. Tennessee, 501 U.S. 808, 842 (1991) (citing Arizona v. Rumsey, 467 U.S. 203, 212 (1984)). Justice Scalia explains that "the doctrine [of stare decisis] would be no doctrine at all" if it did not require overruling judges to "give reasons . . . that go beyond mere demonstration that the overruled opinion was wrong."
99. Hubbard v. United States, 514 U.S. 695, 716 (1995) (Scalia, J., concurring in part and concurring in judgment).
100. But see Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 1-4 (2001) (outlining argument that stare decisis doctrine is coherent without conceding that some erroneous opinions must be upheld).
101. See U.S. Const. art. V (requiring two-thirds vote in both Houses to amend Constitution).
102. Tribe, supra note 26, at 83.
103. See generally Duncan Kennedy, Freedom and Constraint in Adjudication: A Critical Phenomenology, 36 J. Legal Educ. 518 (1986) (examining thought process of judicial decisionmaking and explaining how legal doctrine constrains judges).
104. Michael J. Gerhardt, The Role of Precedent in Constitutional Decisionmaking and Theory, 60 Geo. Wash. L. Rev. 68, 98-109 (1991) (discussing variety of techniques for "weakening precedents," including narrowing or distinguishing previous precedents).
105. See, e.g., id. at 106, 107 & n.163 (describing four cases through which Supreme Court distinguished precedent in National League of Cities v. Usery, 426 U.S. 833 (1976), thereby weakening precedent without explicitly overruling it).
106. For example, Michael Gerhardt criticizes the Court for "grossly mischaracteriz[ing]" its ruling in Dennis v. United States, 341 U.S. 494 (1951), for the purposes of weakening its holding without expressly overruling it.
107. See id. at 108 n.169. Another example of this judicial maneuverability is the Court's holding in Solem v. Helm, 463 U.S. 277 (1983). An earlier 1980 opinion had upheld, against an Eighth Amendment "cruel and unusual punishment" challenge, a Texas statutory requirement of a mandatory life sentence for certain defendants convicted of three felonies.
108. Rummel v. Estelle, 445 U.S. 263 (1980). Solem v. Helm involved a nearly identical punishment scheme to that upheld in Rummel, but the Court invalidated the scheme in a majority opinion that tracked very closely to the dissenting opinion in Rummel. The Court's language in Solem was so similar to that of the dissent in Rummel that Chief Justice Burger's dissent accused the majority of overruling Rummel sub silentio. Solem, 463 U.S. at 304 (Burger, C.J., dissenting) (complaining that "[a]lthough today's holding cannot rationally be reconciled with Rummel, the Court does not purport to overrule Rummel").
109. For an argument that the decision to read a case narrowly or broadly is not necessarily arbitrary, see Tribe & Dorf, Reading the Constitution, supra note 26, at 112-17 (asserting that no case can dictate, on its own terms, proper level of generality at which it should be read);
110. Laurence H. Tribe & Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U. Chi. L. Rev. 1057, 1067-68 (1990) (same).
111. Dictum is any part of an opinion that is "unnecessary" to the outcome of the case. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 572-73 (1993) (Souter, J., concurring in part and concurring in judgment) (applying concept of dictum to distinguish prior holding).
112. Michael C. Dorf, Dicta and Article III, 142 U. Pa. L. Rev. 1997, 2005 (1994) [hereinafter Dorf, Dicta].
113. See Major B. Harding, Judicial Decision-Making Analysis of Federalism Issues in Modern United States Supreme Court Maritime Cases, 75 Tul. L. Rev. 1517, 1526-28 (2001) (arguing that, although legislature may wish judges to "operate as robots," adjudication "must not[ ] become too scientific").
114. Some scholars, including Ronald Dworkin, believe there is usually a "best" answer. See Ronald Dworkin, A Matter of Principle 162 (1985).
115. Cf. David Luban, Reason and Passion in Legal Ethics, 51 Stan. L. Rev. 873, 893 (1999) ("[W]hether or not legal questions have right answers, they do have wrong answers.").
116. Id.; see also Thomas Morawetz, Understanding Disagreement, the Root Issue of Jurisprudence: Applying Wittgenstein to Positivism, Critical Theory, and Judging, 141 U. Pa. L. Rev. 371, 406 (1992) ("The [judicial] practice is bounded not by a single shared style of reasoning but by familiar, if unspecifiable, criteria for the kinds of reasoning that count. In die absence of such criteria, the practice would fall apart.").
117. See Stanley Fish, Fish v. Fiss, in Interpreting Law and Literature: A Hermeneutic Reader 251, 262 (Sanford Levinson & Steven Mailloux eds., 1988) ("Since [judges] are already and always thinking within the norms, standards, criteria of evidence, purposes, and goals of a shared enterprise, the meanings available to them have been preselected by their professional training ....");
118. Edward L. Rubin & Malcolm M. Feeley, Judicial Policy Making and Litigation Against the Government, 5 U. Pa. J. Const. L. 617, 664 (2003) (explaining existence of "common background, common set of experiences and common approach to diagnosing and solving problems that shape judges' visions, constrain their actions, and lead them, even when most aggressively making policy, to embrace norms that are conventional").
119. Tracey E. George, Court Fixing, 43 Ariz. L. Rev. 9, 27 (2001) ("Judges as well as potential judges share meaningful, transformative educational experiences, namely college and law school matriculation, and consequently they will be more alike than different when compared to a random cross-section of Americans.").
120. See Henry J. Abraham, Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton 44-45 (rev. ed. 1999);
121. Mark A. Graber, Does it Really Matter?: Conservative Courts in a Conservative Era, 75 Fordham L. Rev. 675, 692-93 (2006).
122. See George, supra note 70, at 27-28 ("[J]udges who attend[ ] elite law schools more frequently describe[ ] themselves as innovative decision-makers.").
123. Lewis A. Kornhauser & Lawrence G. Sager, The One and the Many: Adjudication in Collegial Courts, 81 Cal. L. Rev. 1, 2 (1993) (describing two cases in which "single Justice, in deference to views of his colleagues, chose to cast his vote against his own substantive view of case").
124. See id. at 4 ("Collegial enterprises [like the Supreme Court] . . . are like team enterprises in that each participant must consider and respond to her colleagues .... Collaboration and deliberation are the trademarks of collegial enterprise, and the objective of collegial enterprise often reaches beyond accuracy to other measures of quality.").
125. Also, note that Justices do not like to be overruled. See Richard S. Higgins & Paul H. Rubin, Judicial Discretion, 9 J. Legal Stud. 129, 130 (1980). Given the collegial nature of the judicial profession, it makes sense that Justices would want to do unto other Justices as they would have those other Justices do unto them .
126. See James Willard Hurst, Dealing with Statutes 1 (1982) ("More than constitutional law or common law, legislation and interpretation of legislation by lawyers, executive and administrative officers, and judges provide the bases for those parts of legal order which enter most broadly into people's everyday lives as well as into grand designs of public policy.").
127. See Stanley Fish, There Is No Textualist Position, 42 San Diego L. Rev. 629, 632 (2005) ("Words alone, without an animating intention, do not have power, do not have semantic shape, and are not yet language." (emphasis omitted)).
128. Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv. L. Rev. 2085, 2141-42 (2002) (noting that children can understand otherwise incomprehensible language such as Pig Latin through reference to interpretive regime).
129. The relevant literature concerning statutory interpretation is vast. Three useful overviews are: William N. Eskridge, Jr., Philip P. Frickey & Elizabeth Garrett, Legislation and Statutory Interpretation (2000);
130. Abner J. Mikva & Eric Lane, An Introduction to Statutory Interpretation and the Legislative Process (1997);
131. Scalia, supra note 9.
132. Richard J. Pierce, Jr., Reconciling Chevron and Stare Decisis, 85 Geo. L.J. 2225, 2233 (1997) (referring to "wide variety of 'tools of statutory construction' available to judges"
133. (quoting Kenneth Culp Davis & Richard J. Pierce, Jr., 1 Administrative Law Treatise § 2.6 (1994))).
134. The maxim of expressio unius, for short, means that inclusion of one thing indicates exclusion of the other.
135. See, e.g., Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 730-31 (1989) (O'Connor, J.) (arguing that inclusion of "and laws" in section 1983 indicates that the section is not limited to violations of constitutional rights);
136. Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 132 (1989) (holding that existence of right of action for one form of harm suggests exclusion of implied right of action for another form of harm).
137. The constitutional avoidance canon means that ambiguous statutes should be construed, whenever possible, to avoid potential constitutional conflicts. See, e.g., NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 507 (1979) (interpreting National Labor Relations Act in such way as to avoid potential conflict with the First Amendment Religion Clauses "in the absence of a clear expression of Congress' intent [to the contrary]").
138. Court reliance on dictionaries has increased dramatically in the past twenty-five years. "In the 1981 Term, only one majority opinion referred to a dictionary in resolving a question of statutory interpretation. The number had grown to nine by the 1988 Term (13% of all statutory interpretation opinions) and jumped to twenty-two (33% of statutory interpretation opinions) in the most recent Term."
139. Thomas W. Merrill, Textualism and the Future of the Chevron Doctrine, 72 Wash. U. L.Q. 351, 357 (1994).
140. "Most judges and scholars agree that committee reports . . . should be given great weight" for purposes of interpreting statutory meaning. William N. Eskridge, Jr., et al., Cases and Materials on Legislation: Statutes and the Creation of Public Policy 947 (3d ed. 2001) [hereinafter Eskridge, Legislation].
141. For a compelling argument for the use of other forms of legislative history, see Breyer, supra note 9, at 848-61.
142. A notable example in administrative law was established in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Chevron held that, when courts are interpreting ambiguous statutes, they should presume that Congress intended implementing agencies rather than courts to fill any gaps in the statutory text. Thus, courts should defer to the authoritative interpretation of an implementing agency so long as it is reasonable, regardless of whether or not it is the best interpretation.
143. See infra notes 138-149 and accompanying text.
144. The three main theories of statutory interpretation today are textualism (emphasis on the literal commands of the statutory text), intentionalism (emphasis on the presumed intent of the enacting legislature), and purposivism (emphasis on the presumed purpose of the statute).
145. See William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321, 324 (1990) [hereinafter Eskridge & Frickey, Practical Reasoning].
146. For a discussion of the merits of textualism, see John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1 (2001);
147. Scalia, supra note 9. For a discussion of intentionalism, see Eskridge & Frickey, Practical Reasoning, supra, at 325-32;
148. Fish, supra note 76. For a variation on intentionalism, see Richard A. Posner, The Federal Courts: Crisis and Reform 286 (1985) (arguing that judge should imagine she is talking to enacting legislature and should reconstruct how legislators would have answered interpretive question at issue, given their values and concerns at time of enactment).
149. For a discussion of purposivism, see Eskridge & Frickey, Practical Reasoning, supra, at 332-39.
150. This Part is divided into categories in order to illuminate differences in how the Supreme Court applies stare decisis to various tools of statutory interpretation. Note that this is not a complete list of the tools of statutory interpretation. For a more exhaustive list, see Eskridge, Legislation, supra note 83, at 818 (identifying textual canons, substantive canons, and reference canons as the three basic types of canons). Textual canons govern the way an interpreter reads statutory text independent of other sources of interpretation. A common example is expressio unius.
151. See supra note 80.
152. Substantive canons direct an interpreter to resolve ambiguity in a statute's text a certain way based on some extrinsic policy. See Eskridge, Legislation, supra note 83, at 848-51. Traditionally, the main canons in this category call for a "liberal" or "strict" interpretation of specific kinds of statutes. For example, criminal statutes should be construed strictly,
153. id. at 851-73, whereas civil rights statutes should be construed liberally.
154. Id. at 848. Clear statement rules and presumptions that cut across different types of statutory schemes are other subcategories within the substantive canon category.
155. See id. at 850-51.
156. Finally, reference canons direct the interpreter to sources of interpretation found outside the statutory text such as the common law, legislative history, or agency interpretations. See id. at 818-19.
157. For simplicity's sake, this section focuses on textual canons as opposed to substantive canons in order to avoid some of the potential constitutional entanglements with the rule of lenity, federalism interpretive canons, and constitutional avoidance.
158. Compare Seminole Tribe v. Florida, 517 U.S. 44, 67 (1996) ("When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound."),
159. with Jonathan R. Siegel, The Polymorphic Principle and the Judicial Role in Statutory Interpretation, 84 Tex. L. Rev. 339, 385-86 (2005) ("Time and again one sees the Court stating a principle of statutory interpretation without apparent qualification in one case, only to ignore it in the next.").
160. See Alexander M. Bickel & Harry H. Wellington, Legislative Purpose and the Judicial Process: The Lincoln Mills Case, 71 Harv. L. Rev. 1, 39 n.122 (1957) (referring to "time-honored place of fictions in the law");
161. Dorf, Dicta, supra note 64, at 2064 (arguing that "a lack of candor with respect to the holding/dictum distinction manifests itself when judges purport to be less constrained by precedent than a fair reading of prior cases suggests").
162. See generally David L. Shapiro, In Defense of Judicial Candor, 100 Harv. L. Rev. 731 (1987) (arguing that "a good case can be made that the obligation to candor is absolute").
163. See supra Part I.D.
164. See, e.g., Siegel, supra note 88, at 389 ("One might well ask why the Court regards itself as less bound by its decisions regarding methods than by the results of the methods as applied. That question, however, interesting though it is, is reserved for some other article.").
165. For example, Professor Rosenkranz asserts that "Justices do not seem to treat methodology as part of the holding of case law." Rosenkranz, supra note 77, at 2144. For support, he cites an example in which Justice Scalia seems to treat a subdecision on legislative history from a previous case as not being bound by law.
166. Id. at 2145 n.267. However, Professor Rosenkranz does not extend his inquiry beyond the realm of legislative history, where, as this Note will demonstrate, infra Parts II.B and II.C.1, there is significant evidence of Justices giving precedential value to subdecisions on statutory interpretation. To be fair to Professor Rosenkranz, he does concede his uncertainty with regard to the central question of this Note.
167. See Rosenkranz, supra note 77, at 2145 n.267 ("Does [nonbinding approach to legislative history subdecisions] suggest. . . [Justice Scalia] views choice of interpretive methodology not merely as an inalienable component of the judicial power but rather as an inalienable prerogative of each individual Article III judge? Or do the policies underlying stare decisis not apply to interpretive methodology?").
168. For example, Adrian Vermeule discusses the impact of stare decisis with regard to interpretive tools in his model of the cycles of statutory interpretation, but he does not discuss whether the Supreme Court applies stare decisis in this way.
169. Adrian Vermeule, The Cycles of Statutory Interpretation, 68 U. Chi. L. Rev. 149, 174 (2001) [hereinafter Vermeule, Cycles].
170. See supra Part I.C.
171. See supra notes 37-39 and accompanying text.
172. That is, if the Court acts as though a subdecision about statutory interpretation in a previous case relieves the Court of the burden of explanation on that issue, that would add weight to the proposition that die Court considers the subdecision to be binding.
173. See supra notes 60-65 and accompanying text.
174. See Kennedy, supra note 59, at 522 (explaining that judges are neither completely "bound" nor completely "free" when they write opinions, as they are "limited by the pseudo-objectivity of the rule-as-applied," which requires legal reasoning to distinguish).
175. See Smith v. City of Jackson, 544 U.S. 228, 248 (2005) ("Our starting point is the statute's text.");
176. Desert Palace, Inc. v. Costa, 539 U.S. 90, 98 (2003) ("Our precedents make clear that the starting point for our analysis is the statutory text.").
177. Friedrich v. City of Chicago, 888 F.2d 511, 514 (7th Cir. 1989).
178. See Eskridge, Legislation, supra note 83, at 818.
179. 367 U.S. 303 (1961).
180. See id. at 304-05.
181. 64 Stat. 1137 (1951) (repealed 1954).
182. 95 U.S. 704 (1877).
183. Jarecki, 367 U.S. at 307.
184. 485 U.S. 759 (1988).
185. Id. at 784-801 (Stevens, J., concurring in judgment).
186. Id. at 778 (Scalia, J.).
187. The "rule against redundancy" is also called the "Rule to Avoid Surplusage."
188. See Eskridge, Legislation, supra note 83, at 833.
189. Kungys, 485 U.S. at 778 (citing Colautti v. Franklin, 439 U.S. 379, 392 (1979),
190. Jarecki, 367 U.S. at 307-08, and United States v. Menasche, 348 U.S. 528, 538-39 (1955)).
191. For more examples, see Field v. Mans, 516 U.S. 59, 69 (1995)
192. (citing Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 (1989),
193. and Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992), for proposition that "[i]t is . . . well established that where Congress uses terms that have accumulated settled meaning under . . . the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms" (citations omitted));
194. United States v. Ron Pair Enters., 489 U.S. 235, 250 (1989) (O'Connor, J., dissenting)
195. (citing Constanzo v. Tillinghast, 287 U.S. 341 (1932),
196. and Barrett v. Van Pelt, 268 U.S. 85 (1925), for proposition that punctuation is minor and not controlling element in statutory interpretation).
197. See Chicasaw Nation v. United States, 534 U.S. 84, 94 (2001)
198. (citing Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 115 (2001)).
199. See Siegel, supra note 88, at 388-89 (arguing that apparent judicial discretion in applying scrivener's error canon suggests that stare decisis does not apply).
200. See, e.g., Frank H. Easterbrook, Judicial Discretion in Statutory Interpretation, 57 Okla. L. Rev. 1, 3-20 (2004) (reviewing instances of selective application of canons of construction).
201. Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, 401-06 (1950).
202. See, e.g., Max Radin, Statutory Interpretation, 43 Harv. L. Rev. 863, 864 (1930) (explaining that courts often select particular canon of construction and accompanying statutory meaning "after-rather than before-the effect of such an interpretation on the decision [is] known").
203. See, e.g., Larry J. Pittman, The Federal Arbitration Act: The Supreme Court's Erroneous Statutory Interpretation, Stare Decisis, and a Proposal for Change, 53 Ala. L. Rev. 789, 816 (2002) ("[T] he Justices can, through the selective use of various statutory interpretation theories . . . manipulate their arguments and statutory interpretations to obtain desired substantive outcomes . . . .");
204. Rosenkranz, supra note 77, at 2148 ("[C]hoosing interpretive canons is like 'entering a crowded cocktail party and looking over die heads of the guests for one's friends.' "
205. (quoting Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring))).
206. See, e.g., Lawrence v. Texas, 539 U.S. 558, 587 (2003) (Scalia, J., dissenting) ("[W]e should be consistent rather than manipulative in invoking [stare decisis]. Today's opinions in support of reversal do not bother to distinguish-or indeed, even bother to mention-the paean to stare decisis coauthored by three Members of today's majority in Planned Parenthood v. Casey.");
207. see also supra note 62 and accompanying text.
208. See, e.g., U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 462 (1993) (holding that canon of avoiding scrivener's errors overcame mandate of canon against repunctuation).
209. See Kent Greenawalt, Are Mental States Relevant for Statutory and Constitutional Interpretation?, 85 Cornell L. Rev. 1609, 1632 (2000) ("Statutory interpretation is a complicated business.").
210. See supra notes 60-65 and accompanying text.
211. See, e.g., Christensen v. Harris County, 529 U.S. 576, 582-84 (2000) (accepting canon of expressio unius based on application in previous cases, but refusing to find canon decisive because of counter considerations involving statutory context);
212. Gutierrez v. Ada, 528 U.S. 250, 258 (2000) (declining to follow rule against redundancy when other textual canons provided more compelling support for alternative interpretation);
213. Green v. Bock Laundry Mach. Co., 490 U.S. 504, 509-10 (1989) (refusing to interpret statute consistent with its "plain language" in light of "odd result" such interpretation would create).
214. See, e.g., United States v. Turkette, 452 U.S. 576, 581 (1981) (refusing to apply textual cannon ejusdem generis because, unlike previous cases in which canon was invoked, statutory language and structure did not convey uncertain meaning).
215. 508 U.S. 439 (1993).
216. Siegel, supra note 88, at 388 & n.243.
217. Lamie v. U.S. Tr., 540 U.S. 526, 542 (2004) (quoting United States v. Granderson, 511 U.S. 39, 68 (1994) (Kennedy, J., concurring)).
218. U.S. Nat'lBank, 508 U.S. at 455, 462 (correcting "a simple scrivener's error" that caused "punctuation marks [to be] misplaced").
219. Siegel, supra note 88, at 388.
220. 508 U.S. at 454-55.
221. Id. ("No more than isolated words or sentences is punctuation alone a reliable guide for discovery of a statute's meaning.").
222. See supra notes 61-62 and accompanying text.
223. See Eskridge, Legislation, supra note 83, at 920.
224. For a full taxonomy of extrinsic source canons, see William Eskridge, Jr. & Philip Frickey, The Supreme Court, 1993 Term-Forward: Law as Equilibrium, 108 Harv. L. Rev. 26, 99-108 (1994) [hereinafter Eskridge 8c Frickey, Equilibrium].
225. See Thomas W. Merrill & Kathryn Tongue Watts, Agency Rules with the Force of Law: The Original Convention, 116 Harv. L. Rev. 467, 583 (2002) (referring to "thousands of federal statutes containing tens of thousands of rulemaking grants").
226. Exec. Order No. 12,866, 3 C.F.R. 638 (1993) (basing its mandate on fact that "[f]ederal agencies are the repositories of significant substantive expertise and experience").
227. See Michael Asimow, The Scope of Judicial Review of Decisions of California Administrative Agencies, 42 UCLA L. Rev. 1157, 1192 (1995) ("An agency frequently has occasion to interpret the meaning of statutes or other legal texts such as its own regulations, judicial decisions, or the common law.")
228. See Cass R. Sunstein, Law and Administration After Chevron, 90 Colum. L. Rev. 2071, 2075 (1990) ("[Chevron] has established itself as one of the very few defining cases in the last twenty years of American public law.").
229. 467 U.S. 837 (1984).
230. Id. at 839-40.
231. See id. at 842 n.7.
232. See, e.g., Patricia M. Wald, Judicial Review in Midpassage: The Uneasy Partnership Between Courts and Agencies Plays On, 32 Tulsa L.J. 221, 241 (1996) ("Chevron, in my view, is as much of a landmark decision as exists in administrative law." (footnote omitted)).
233. See Peter L. Strauss et al., Gellhorn and Byse's Administrative Law 1033 (rev. 10th ed. 2003) (finding Chevron to be most cited administrative law case in U.S. Circuit Courts of Appeals decisions in Westlaw search conducted September 22, 2002).
234. Chevron, 467 U.S. at 842-43.
235. Id. at 842.
236. Id. at 843.
237. Id. at 845.
238. Elliot Greenfield, A Lenity Exception to Chevron Deference, 58 Baylor L. Rev. 1, 8-9, 21-24 (2006) (describing rule of lenity, other canons, and Chevron doctrine as presumptions about congressional intent).
239. See Peter L. Strauss, Publication Rules in the Rulemaking Spectrum: Assuring Proper Respect for an Essential Element, 53 Admin. L. Rev. 803, 822-23 (2001) (describing Chevron as associated with "obedience" model of agency oversight, where "courts encountering agency decisions [that the courts] conclude the agencies were authorized to take must accept the conclusions they embody rather than displace them with their own independent judgment on the matter" as long as agency interpretations are "reasonable").
240. See, e.g., Barnhart v. Walton, 535 U.S. 212, 217-18 (2002) (applying Chevron doctrine to Social Security Act);
241. Nat'l Fed'n of Fed. Employees, Local 1309 v. Dep't of Interior, 526 U.S. 86, 92 (1999) (applying Chevron doctrine to Federal Service Labor-Management Relations Statute).
242. See Walton, 535 U.S. at 217-18.
243. 540 U.S. 20, 26 (2003).
244. 545 U.S. 967, 986 (2005).
245. 533 U.S. 218, 234 (2001).
246. But see id. at 239-40 (Scalia, J., dissenting) (arguing that majority holding "replaced the Chevron doctrine").
247. Id. at 231.
248. For a discussion of cases and scholarship on a variety of sources of legislative history, see Eskridge, Legislation, supra note 83, at 937-1060.
249. I use the broad term "legislative history" here, by which I mean the internal prehistory of a statute, including the institutional progress of a bill to enactment and the deliberation accompanying that progress. See id. at 937.
250. For an introduction to this area, compare William T. Mayton, Law Among the Pleonasms: The Futility and Aconstitutionality of Legislative History in Statutory Interpretation, 41 Emory L.J. 113 (1992) (arguing against use of legislative history),
251. with Breyer, supra note 9 (explaining benefits of careful use of legislative history).
252. Compare Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004) ("[W]hen the statute's language is plain, the sole function of the courts - at least where the disposition required by the text is not absurd-is to enforce it according to its terms." (internal quotation marks omitted)
253. (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000))),
254. with Salinas v. United States, 522 U.S. 52, 57 (1997) (explaining that only "most extraordinary showing" of intention in legislative history will justify departure from clear statutory text
255. (quoting United States v. Albertini, 472 U.S. 675, 680 (1985))). The same distinctions between the aforementioned cases are drawn in Siegel, supra note 88, at 386-87.
256. See Salinas, 522 U.S. at 57.
257. See Lamie, 540 U.S. at 534.
258. See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 623 (1990) (describing "new textualism" as judicial methodology that posits that "once the Court has ascertained a statute's plain meaning, consideration of legislative history becomes irrelevant").
259. For a discussion of these arguments, see supra notes 49-54 and accompanying text.
260. 503 U.S. 249, 253-54 (1992) (internal quotation marks omitted)
261. (quoting Rubin v. United States, 449 U.S. 424, 430 (1981)).
262. Id. at 255-56 (Stevens, J., concurring in judgment).
263. 507 U.S. 511, 514 (1993).
264. Id.
265. Id. at 518-28.
266. Id. at 519. Specifically, Justice Scalia argues that legislative history is a less legitimate source of meaning because, unlike statutory text, it is not subject to bicameralism and presentment pursuant to U.S. Const, art. I, § 7, cl. 2.
267. Conroy, 507 U.S. at 518-19.
268. Id. at 518 n.12 (citations omitted). Justice Thomas dissented from this footnote.
269. Id. at 512.
270. Justices Breyer and Stevens continually advocate for permissive use of legislative history while Justices Scalia and Thomas continually argue that legislative history may not be consulted when the text is unambiguous.
271. See, e.g., Zedner v. United States, 126 S. Ct. 1976, 1990 (2006) (Scalia, J., concurring in judgment);
272. United States v. Booker, 543 U.S. 220, 313 (2005) (Thomas, J., dissenting in part);
273. Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 560 (2001) (Scalia, J., dissenting).
274. See, e.g., Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 572 (2005) (Stevens, J., dissenting) (joined by Justice Breyer);
275. City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 129 (2005) (Stevens, J., concurring in judgment).
276. Zedner, 126 S. Ct. at 1985 ("This interpretation is entirely in accord with the Act's legislative history.").
277. Id. at 1990.
278. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 126 S. Ct. 2455 (2006).
279. Id. at 2463.
280. See supra Part II.B (discussing textual canons) and Part II.C.l (discussing administrative interpretations).
281. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 19 (1959).
282. But see Jan G. Deutsch, Neutrality, Legitimacy, and the Supreme Court: Some Intersections Between Law and Political Science, 20 Stan. L. Rev. 169, 179-85 (1968) (arguing that Wechsler assumes his own conclusion and disputing Wechsler's interpretation of neutral principles);
283. Cass R. Sunstein, Neutrality in Constitutional Law (with Special Reference to Pornography, Abortion and Surrogacy), 92 Colum. L. Rev. 1, 5-13 (1992) (questioning baseline against which Wechsler measures neutrality).
284. See supra Parts II.B and II.C.1.
285. See supra note 3 and accompanying text.
286. See supra Part II.B.
287. See supra Part II.C.1.
288. See supra Part II.C.2.
289. For a discussion of the circumstances under which the Court overturns more conventional precedents, see supra notes 49-54 and accompanying text.
290. See discussion supra notes 61-65 and accompanying text.
291. See discussion supra Part I.B.
292. See discussion supra Part I.B.
293. Rosenkranz, supra note 77, at 2088;
294. see also Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1169 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) ("The hard truth of the matter is that American courts have no intelligible, generally accepted, and consistendy applied theory of statutory interpretation.").
295. For a defense of another proposal to improve statutory interpretation based on the importance of improving predictability, see Adrian Vermeule, Interpretive Choice, 75 N.Y.U. L. Rev. 74, 81 (2000) [hereinafter Vermeule, Interpretive Choice] (arguing that judges should choose interpretive doctrines that minimize uncertainty).
296. See Rosenkranz, supra note 77, at 2157 ("The most important features of an interpretive regime are that it be clear, predictable, and internally coherent . . . .").
297. For a discussion of the efficiency gains of traditional stare decisis doctrine, see supra notes 37-39 and accompanying text.
298. Note that Benjamin Cardozo's quote, supra note 37, applies with equal force irrespective of the manner of precedent at issue.
299. For a discussion of this particular textual canon, see supra note 80.
300. See Rosenkranz, supra note 77, at 2142.
301. Id.;
302. see also Eskridge & Frickey, Equilibrium, supra note 134, at 67 (noting importance of not necessarily finding best theory of interpretation, but rather consistent theory).
303. Finley v. United States, 490 U.S. 545, 556 (1989).
304. See supra Part II.B.
305. While several commentators have noted that Congress is not currently aware of many of the Court's decisions about statutory interpretation, see Eskridge, Legislation, supra note 83, at 409 (discussing disappointing results of "Corrections Day" process in House of Representatives under which Congress may consider and correct major judicial statutory interpretations), it seems at least plausible that one reason for this is that the doctrine is unpredictable. If stare decisis applied to statutory interpretation subdecisions, Congress would have greater incentives to gain awareness of the Court's interpretive doctrines.
306. Committee reports are produced when legislation is in committee or subcommittee, which is the time when "[m]ost legislation is essentially written." Eskridge, Legislation, supra note 83, at 947-49. For an introduction to current jurisprudence related to committee reports, see id.
307. Vermeule, Cycles, supra note 93, at 174 (explaining that stare decisis encourages legislators to respond to Court doctrines bound by law because they "believe that courts will do in the next period what they did in the last").
308. Or more likely, such a rule will cause his staff to focus on the text and then summarize their findings for him before he votes.
309. Vermeule, Interpretive Choice, supra note 193, at 140-41 (explaining argument that merely "picking canons" would obtain benefits of certainty and consistency in communication between courts and legislatures).
310. See supra Part II.C.2.
311. See supra Parts II.B and II.C.l.
312. Monaghan, Supreme Court Opinions, supra note 3, at 20.
313. Id. (internal quotation marks omitted).
314. Id. at 23.
315. See Artemus Ward & David L. Weiden, Sorcerers' Apprentices: 100 Years of Law Clerks at the United States Supreme Court 45-46 (2006) ("After the cert pool was created and expanded [in 1973], the number of separate concurring and dissenting opinions issued by the justices exploded.").
316. See supra notes 174-175 and accompanying text.
317. This is because there will clearly be higher stakes to signing on to an opinion that adopts a subdecision on the use of legislative history. However, since Justices already engage in this practice of concurring in the judgment when they disagree with legislative history subdecisions, one should not expect an overwhelming increase in concurrences. The increased concurring opinions that would occur would probably simply disagree with the statutory interpretation subdecisions, which should not significantly obscure the other holdings in the case. As soon as subdecisions on legislative history are entrenched in precedent, one would expect concurrences in judgment to decrease because Justices will have to meet a higher burden of explanation to make the case for overturning precedent.
318. One of the leading arguments for this premise, on which Vermeule relies, was offered by Cass Sunstein. Cass R. Sunstein, Must Formalism Be Defended Empirically?, 66 U. Chi. L. Rev. 636, 641 (1999) (arguing that formalism must be defended on empirical grounds). Vermeule presents Sunstein's argument in Adrian Vermeule, Interpretation, Empiricism, and the Closure Problem, 66 U. Chi. L. Rev. 698, 699 (1999) [hereinafter Vermeule, Interpretation].
319. Vermeule, Interpretation, supra note 215, at 698.
320. Vermeule, Interpretive Choice, supra note 193, at 77.
321. Vermeule, Interpretation, supra note 215, at 698.
322. Vermeule, Interpretive Choice, supra note 193, at 128.
323. Id. at 74-75.
324. See Rosenkranz, supra note 77, at 2135.
325. Id. at 2156.
326. Id. at 2156-57.
327. Id. at 2157 ("The most important features of an interpretive regime are that it be clear, predictable, and internally coherent, and that both promulgator and interpreter of text agree on the regime beforehand. In most cases, the particular choice of rule will be less important than that some clear rule be chosen.").
328. Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation 184 (2006) ("Past history shows that it is most unlikely that Congress will enact rules of interpretation that will generally resolve the disputed issues of interpretive choice.").
329. See supra note 57 and accompanying text.
330. However, this argument might be less convincing because extending stare decisis to constitutional interpretation subdecisions would not gain the same legislative efficiencies from a clear statement to the drafters of the law. Since the Constitution is fairly stable, the legislative efficiency benefit is much less dramatic in the constitutional context.