Second-generation textualism

California Law Review

Volumn 98, Issue 4, 2010, Pages 1287-1318

  Manning, John F ^a  

^a HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 78649613109     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (269)

1. See Philip P. Frickey, Revisiting the Revival of Theory in Statutory Interpretation: A Lecture in Honor of Irving Younger, 84 Minn. L. Rev. 199 (1999);
2. Philip P. Frickey, From the Big Sleep to the Big Heat: The Revival of Theory in Statutory Interpretation, 11 Minn. L. Rev. 241, 250 (1992) [hereinafter Frickey, Big Heat].
3. See William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321 (1990).
4. See William N. Eskridge, Jr. & Philip P. Frickey, The Supreme Court 1993 Term: Foreword: Law as Equilibrium, 108 HARV. L. REV. 26 (1994);
5. William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593(1994).
6. See WILLIAM N. ESKRIDGE, JR. & PHILIP P. FRICKEY, LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY (1st ed. 1988). By the third edition, the list of authors had grown to include Elizabeth Garrett.
7. See Phihp P. Frickey, Getting from Joe to Gene (McCarthy): The Avoidance Canon, Legal Process Theory, and Narrowing Statutory Interpretation in the Early Warren Court, 93 CALIF. L. REV. 397 (2005).
8. See Philip P. Frickey, Interpretive-Regime Change, 38 LOY. L.A. L. REV. 1971 (2005).
9. See Philip P. Frickey, Wisdom on Weber, 74 TUL. L. REV. 1169,1186 (2000).
10. See DANIEL A. FÄRBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION (1991) [hereinafter FARBER & FRICKEY, LAW AND PUBLIC CHOICE];
11. Daniel A. Farber & Philip P. Frickey, Legislative Intent and Public Choice, 74 VA. L. REV. 423 (1988);
12. Daniel A. Farber & Philip P. Frickey, The Jurisprudence of Public Choice, 65 TEX. L. REV. 873 (1987);
13. Daniel A. Farber & Philip P. Frickey, Integrating Public Choice and Public Law: A Reply to DeBow and Lee, 66 TEX. L. REV. 1013 (1988).
14. See, e.g., William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 640-56 (1991) (describing the tenets of the new textualism);
15. John F. Manning, Textualism and Legislative Intent, 91 VA. L. REV. 419,420-21 (2005) (same).
16. See infra Part I.A.
17. Judge Easterbrook most famously made these arguments in Frank H. Easterbrook, Statutes ' Domains, 50 U. CHI. L. REV. 533, 546 (1983).
18. See infra text accompanying note 52.
19. For other examples of this genre, see Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 YALE L.J. 31, 35-44 (1991);
20. William N. Eskridge, Jr., Politics Without Romance: Implications of Public Choice Theory for Statutory Interpretation, 74 VA. L. REV. 275 (1988);
21. Edward L. Rubin, Beyond Public Choice: Comprehensive Rationality in the Writing and Reading of Statutes, 66 N.Y.U. L. REV. 1 (1991).
22. See FARBER & FRICKEY, LAW AND PUBLIC CHOICE, supra note 8, at 24-33, 46-62.
23. See infra Part II.A.
24. See infra Part II.B.
25. Certainly, those views were commonly voiced about public choice theory in general. See, e.g., Mark Kelman, On Democracy-Bashing: A Skeptical Look at the Theoretical and "Empirical" Practice of the Public Choice Movement, 74 VA. L. REV. 199 (1988);
26. Richard H. Pildes & Elizabeth S. Anderson, Slinging Arrows at Democracy: Social Choice Theory, Value Pluralism, and Democratic Politics, 90 COLUM. L. REV. 2121, 2136-37 (1990). Commentators have periodically leveled the charge that textualism, at least to the extent it relies on public choice theory, has an anti-legislature flavor to it.
27. See, e.g., Muriel Morisey Spence, The Sleeping Giant: Textualism as Power Struggle, 67 S. CAL. L. REV. 585 (1994);
28. Peter L. Strauss, The Courts and the Congress: Should Judges Disdain Political History?, 98 COLUM. L. REV. 242 (1998).
29. See infra Part III.C
30. See infra text accompanying notes 105-115.
31. See John F. Manning, What Divides Textualists from Purposivists?, 106 COLUM. L. REV. 70, 99-107 (2006) (describing the premises of second-generation textualism).
32. See infra text accompanying notes 112-119.
33. See, e.g., Philbrook v. Glodgett, 421 U.S. 707, 713 (1975) ("Our objective ... is to ascertain the congressional intent and give effect to the legislative will.");
34. United States v. Am. Trucking Ass'ns, 310 U.S. 534, 542 (1940) ("In the interpretation of statutes, the function of the courts is easily stated. It is to construe the language so as to give effect to the intent of Congress.");
35. ICC v. Baird, 194 U.S. 25, 38 (1904) ("The object of construction, as has been often said by the courts and writers of authority, is to ascertain the legislative intent, and, if possible, to effectuate the purposes of the lawmakers."). The concepts of "intent" and "purpose" have considerable overlap and are sometimes used interchangeably. To the extent there is a difference, it is helpful to think of "intent" as "the specific, particularized application which the statute was 'intended' to be given" and of "purpose" as "the general aim or policy which pervades a statute but has yet to find specific application."
36. Archibald Cox, Judge Learned Hand and the Interpretation of Statutes, 60 HARV. L. REV. 370, 370-71 (1947).
37. See, e.g., Schooner Paulina's Cargo v. United States, 11 U.S. (7 Cranch) 52, 60 (1812) (Marshall, C.J.) (noting that legislative intent "is to be searched for in the words which the legislature has employed to convey it");
38. Am. Trucking Ass'ns, 310 U.S. at 543 ("There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation.").
39. See Jorge L. Carro & Andrew R. Brann, The U.S. Supreme Court and the Use of Legislative Histories: A Statistical Analysis, 22 JURIMETRICS J. 294, 302-03 (1982) (chronicling the increase in citations of legislative history by the Supreme Court between 1938 and 1978).
40. The turning point was Am. Trucking Ass 'ns, 310 U.S. 534, which stated: "When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no 'rule of law' which forbids its use, however clear the words may appear on 'superficial examination.
41. '" Id. at 543-44 (quoting Boston Sand & Gravel Co. v. United States, 278 U.S. 41,48 (1928);
42. Helvering v. N.Y. Trust Co., 292 U.S. 455,465 (1934)).
43. See, e.g.. North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 526-27 (1982) ("Although the statements of one legislator made during a debate may not be controlling, Senator Bayh's remarks, as those of the sponsor of the language ultimately enacted, are an authoritative guide to the statute's construction.") (citation omitted);
44. Steadman v. SEC, 450 U.S. 91, 101 (1981) (noting that "[a]ny doubt as to the intent of Congress is removed by the House Report");
45. J. W. Bateson Co. v. United States ex rel. Bd. of Trs. of the Nat'l Automatic Sprinkler Indus. Pension Fund, 434 U.S. 586, 591 (1978) (concluding that "the authoritative Committee Reports" "leave[] no room for doubt about Congress' intent").
46. See, e.g., United Steelworkers of Am. v. Weber, 443 U.S. 193, 202 (1979);
47. Train v. Colo. Pub. Interest Research Group, 426 U.S. 1, 10 (1976).
48. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 412 n.29 (1971).
49. See, e.g., Thompson v. Thompson, 484 U.S. 174, 191-92 (1988) (Scalia, J., concurring in the judgment) ("Committee reports, floor speeches, and even colloquies between Congressmen, are frail substitutes for bicameral vote upon the text of a law and its presentment to the President.");
50. In re Sinclair, 870 F.2d 1340, 1344 (7th Cir. 1989) (Easterbrook, J.) ("It would demean the constitutionally prescribed method of legislating to suppose that its elaborate apparatus for deliberation on, amending, and approving a text is just a way to create some evidence about the law, while the real source of legal rules is the mental processes of legislators.");
51. Eagle-Picher Indus, v. EPA, 759 F.2d 922, 929 n.11 (D.C. Cir. 1985) (Starr, J.) ("The statute is, after all, the only measure which is laid before all members of Congress; and the statute is the only true indicator of what the members, collectively, believed the statute said. We must also keep in mind, in this respect, the oft-forgotten, bedrock fact that the President has an indispensable role to play under the Constitution ....").
52. See, e.g., Antonin Scalia, Speech on Use of Legislative History 13 (delivered during fall 1985 and spring 1986 at various law schools) (transcript on file with the California Law Review) [hereinafter Scalia, Legislative History Speech] (arguing that the use of legislative history "substantially increases, rather than reduces, the scope of judicial discretion").
53. See, e.g., Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 HARV. J.L. & PUB. POL'Y 59, 63 (1988) (arguing that the search for legislative intent "ignores the fact that laws are born of compromise" and that lawmakers do not pursue their objectives at all costs).
54. See infra Part I.A.
55. See generally KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES (2d ed. 1963);
56. DUNCAN BLACK, THE THEORY OF COMMITTEES AND ELECTIONS (1958).
57. See infra Part I.B.
58. William M. Landes & Richard A. Posner, The Independent Judiciary in an InterestGroup Perspective, 18 J.L. & ECON. 875, 877 (1975);
59. see also George J. Stigler, The Theory of Economic Regulation, 2 BELL. J. ECON. & MGMT. Sci. 3 (1971) (laying out the premises of interest group theory).
60. In particular, concentrated interest groups have (a) lower costs of organizing, (b) readier means of detecting and policing free riders, and (c) higher per capita benefits from a favorable regulatory outcome. See MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS 40-41 (1965);
61. Elhauge, supra note 13, at 35-44 (critically discussing interest group theory).
62. Even among nontextualists, the conventional wisdom holds that legislators must expend more political capital to reach agreement on statutory text. See, e.g., Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. CAL. L. REV. 845, 859 (1992);
63. Edward P. Schwartz, Pablo T. Spiller & Santiago Urbiztondo, A Positive Theory of Legislative Intent, LAW & CONTEMP. PROBS. 51, 54-55 (1994).
64. See, e.g., FEC v. Rose, 806 F.2d 1081, 1090 (D.C. Cir. 1986) (Starr, J.) (noting "the well-recognized phenomenon of deliberate manipulation of legislative history at the committee level to achieve what likely cannot be won before Congress as a whole");
65. Wallace v. Christensen, 802 F.2d 1539, 1560 (9th Cir. 1986) (en banc) (Kozinksi, J., concurring in the judgment) ("Reports are usually written by staff or lobbyists, not legislators; few if any legislators read the reports; they are not voted on by the committee whose views they supposedly represent, much less by the full Senate or House of Representatives . . .");
66. Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HARV. J.L. & PUB. POL'Y 61, 61 (1994) ("These clues are slanted, drafted by the staff and perhaps by private interest groups.");
67. Kenneth W. Starr, Observations About the Use of Legislative History, 1987 DUKE L.J. 371, 376 (1987) ("Lobbyists maneuver to get their clients' opinions into the mass of legislative materials").
68. Blanchard v. Bergeron, 489 U.S. 87, 97-100 (1988) (Scalia, J., concurring in part and concurring in the judgment);
69. see Michael Sinclair, The Proper Treatment of "Interpretive Choice" in Statutory Decision Making, 45 N.Y.L. SCH. L. REV. 389, 405 n.73 (2002) (describing the Blanchard concurrence as "a justifiably famous opinion").
70. See Blanchard, 489 U.S. at 98-99 (Scalia, J., concurring in part and concurring in the judgment).
71. Id.
72. See, e.g., Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 620 (1991) (Scalia, J., concurring in the judgment) (contending that the understanding of a statute expressed in committee reports "does not necessarily say anything about what Congress as a whole thought");
73. Edwards v. Aguillard, 482 U.S. 578, 637 (1986) (Scalia, J., dissenting) (questioning whether all legislators would "agree with the motivation expressed in the staff-prepared committee reports they might have read");
74. Hirschey v. FERC, 777 F.2d 1, 7-8 (D.C. Cir. 1985) (Scalia, J., concurring) ("And I think it time for courts to become concerned about the fact that routine deference to the detail of committee reports, and the predictable expansion in that detail which routine deference has produced, are converting a system of judicial construction into a system of committee-staff prescription.").
75. Accordingly, the suspicion is that committees represent narrower interests than the chamber as a whole. See, e.g., Barry R. Weingast & Mark J. Moran, Bureaucratic Discretion or Congressional Control? Regulatory Policymaking by the Federal Trade Commission, 91 J. POL. ECON. 765, 771-72 (1983).
76. But see, e.g., Keith Krehbiel, Are Congressional Committees Composed of Preference Outliers?, 84 AM. POL. SCI. REV. 149, 154-55 (1990) (arguing that committees reflect the ideology of the entire chamber). While political scientists do not all agree on this point, a good deal of evidence suggests that many committees are imperfectly representative of the legislature as a whole.
77. See, e.g., John R. Boyce & Diane P. Bischak, The Role of Political Parties in the Organization of Congress, 18 J.L. ECON. & ORG. 1, 2-3 (2002) (summarizing the debate).
78. In the legislative history speech he gave at various places in the 1980s, Justice Scalia built directly on this theme: Nor, in the realities of the modem Congress, is a committee likely to represent a microcosm of the whole body, with "middle-of-the-road" views on the issues it addresses. To the contrary, by process of self-selection the committee is almost invariably "out in front" of the remainder of the Congress on the issues for which it has responsibility. A farm bill adopted by the Agriculture Committee in either house, for example, would be a far cry from what the full Congress would adopt. Why, then, should we assume that a legislative history largely fabricated by such a committee will be representative of the full Congress? It almost assuredly will not. Scalia, Legislative History Speech, supra note 29, at 12-13.
79. As Judge Buckley has put it, "to the degree that judges are perceived as grasping at any fragment of legislative history for insights into congressional intent, to that degree will legislators be encouraged to salt the legislative record with unilateral interpretations of statutory provisions they were unable to persuade their colleagues to accept." IBEW, Local No. 474 v. NLRB, 814 F.2d 697, 717 (D.C. Cir. 1987) (Buckley, J., concurring).
80. Frank H. Easterbrook, Some Tasks in Understanding Law Through the Lens of Public Choice, 12 INT'L REV. L. & ECON. 284, 284 (1992).
81. Although Judge Easterbrook was primarily responsible for developing this strand of argument, Justice Scalia apparently agreed with him. See Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 517 ( "[T]he quest for the 'genuine' legislative intent is probably a wild-goose chase[.]").
82. See generally ARROW, supra note 32; BLACK, supra note 32.
83. See, e.g., FARBER & FRICKEY, LAW AND PUBLIC CHOICE, supra note 8, at 38-39 (describing the problem of intransitivity). Consider the following illustration: [Ajssume three voters with the following preference orderings: (1) voter 1 prefers A > B > C; (2) voter 2 prefers B > C > A; and (3) voter 3 prefers C > A > B. In a vote between A and B, A wins 2-1. In a vote between B and C, B wins 2-1. And in a vote between C and A, C wins 2-1. Elhauge, supra note 13, at 101 n.261.
84. In the previous example, see supra note 46, if the first vote produces choice A, voters 2 and 3 can vote to reconsider and select option C; at that point, voters 1 and 2 will want to shift their votes to option B; and so forth.
85. See FARBER & FRICKEY, LAW AND PUBLIC CHOICE, supra note 8, at 39-41 (describing Arrovian social choice theory).
86. Easterbrook, supra note 11, at 547-48 (footnotes omitted).
87. See United States v. Klinger, 199 F.2d 645, 648 (2d Cir. 1952) (Hand, J.) ("Flinch as we may, what we do, and must do, is to project ourselves, as best we can, into the position of those who uttered the words, and to impute to them how they would have dealt with the concrete occasion."),
88. aff'd per curiam by an equally divided Court, 345 U.S. 979 (1953);
89. Richard A. Posner, Statutory Interpretation-in the Classroom and in the Courtroom, 50 U. CHI. L. REV. 800, 817 (1983) ("[T]he task for the judge called upon to interpret a statute is . .. one of imaginative reconstruction. The judge should try to think his way as best he can into the minds of the enacting legislators and imagine how they would have wanted the statute applied to the case at bar." (footnote omitted)).
90. See supra text accompanying notes 28-30.
91. For example, in his well-regarded account of the revival of statutory-interpretation theory, Professor Frickey described Justice Scalia's early critique of textualism in the following terms: Scalia charged that legislative history is the product of legislators at their worst- promoting private interest deals, strategically posturing to mislead judges, or abdicating all responsibility to their unelected staff, who create legislative history at the behest of interest groups or to promote their own private agenda. This critique embraces the realistic, even cynical, assumptions about politics that underlie public choice theory. Frickey, Big Heat, supra note 1, at 254 (footnotes omitted). In the late 1980s and early 1990s, a slew of articles contested the empirical assumptions underlying textualism.
92. See, e.g., Breyer, supra note 36, at 861-62, 864-67;
93. George A. Costello, Average Voting Members and Other "Benign Fictions ": The Relative Reliability of Committee Reports, Floor Debates, and Other Sources of Legislative History, 1990 DUKE L.J. 39, 60-72 (1990);
94. William N. Eskridge, Jr., Legislative History Values, 66 CHI.-KENT L. REV. 365, 372 (1990);
95. Earl M. Maltz, Statutory Interpretation and Legislative Power: The Case for a Modified Intentionalist Approach, 63 TUL. L. REV. 1 (1988);
96. Peter L. Strauss, When the Judge Is Not the Primary Official with Responsibility to Read: Agency Interpretation and the Problem of Legislative History, 66 CHI.-KENT L. REV. 321,321-22 (1990);
97. Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405, 429-31 (1989);
98. Patricia M. Wald, The Sizzling Sleeper: The Use of Legislative History in Construing Statutes in the 1988-89 Term of the United States Supreme Court, 39 AM. U. L. REV. 277, 306 (1990);
99. Nicholas S. Zeppos, Legislative History and the Interpretation of Statutes: Toward a Fact-Finding Model of Statutory Interpretation, 76 VA. L. REV. 1295, 1307 n.50 (1990). In addition, an obviously alarmed congressional subcommittee held rather extensive hearings to discuss the question.
100. See Statutory Interpretation and the Uses of Legislative History: Hearings Before the Subcomm. on Courts, Intellectual Property, and the Admin, of Justice of the House Comm. on the Judiciary, 101st Cong., 2d Sess. (1990). And a division of the U.S. Department of Justice issued a report dissecting the use of legislative history in statutory interpretation.
101. See OFFICE OF LEGAL POLICY, U.S. DEP'T OF JUSTICE, USING AND MISUSING LEGISLATIVE HISTORY: A RE-EVALUATION OF THE STATUS OF LEGISLATIVE HISTORY IN STATUTORY INTERPRETATION 54 (1989).
102. Compare Scalia, Legislative History Speech, supra note 29, at 8, 15-16 (citing separation of powers concerns about the use of legislative history), with id. at 5-7, 9-15 (discussing pragmatic difficulties with using legislative history as evidence of legislative intent).
103. See Breyer, supra note 36, at 859 ("The [legislative] process ... is an institutional one, in which the legislator relies in part upon the work of staff.... [N]o legislator reads every word of every report or floor statement or proposed statute, which may consist of hundreds of pages of text. However,... those words are carefully reviewed by those whom they will likely affect and by the legislator's own employees.").
104. See Zeppos, supra note 52, at 1335-60.
105. See, e.g., Eskridge, supra note 9, at 683 ("[F]or most of this century the Court has told Congress, 'We shall attend to committee reports, at least' That has encouraged Congress to develop conventions by which much of the elaboration of statutes ... has been put in committee reports rather than in the statutes themselves, where most of it would be cumbersome and out-ofplace anyway.").
106. See infra text accompanying notes 80-82.
107. See FARBER & FRICKEY, LAW AND PUBLIC CHOICE, supra note 8, at 17-21.
108. See id. at 18. For example, the leading figure in post-war pluralist theory, Robert Dahl, argued that political outcomes represent an equilibrium among interest groups. See generally ROBERT DAHL, WHO GOVERNS? DEMOCRACY AND POWER IN AN AMERICAN CITY (1961), discussed in FARBER & FRICKEY, LAW AND PUBLIC CHOICE, supra note 8, at 17.
109. FARBER & FRICKEY, LAW AND PUBLIC CHOICE, supra note 8, at 19. The then-recent empirical study was by Professors Kay Lehman Schlozman and John T. Tierney. See KAY LEHMAN SCHLOZMAN & JOHN T. TIERNEY, ORGANIZED INTERESTS AND AMERICAN DEMOCRACY (1986).
110. FARBER & FRICKEY, LAW AND PUBLIC CHOICE, supra note 8, at 19. Farber and Frickey also challenged the early textualists' specific factual claim that legislators do not necessarily read committee reports. See id. at 98 n.28 (noting a former Senate staffer's remark that '"[w]ithin the Senate itself, reports are important chiefly because many Senators read nothing else before deciding how to vote on a particular bill" (quoting ERIC REDMAN, THE DANCE OF LEGISLATION 140 (1973)).
111. Id. at 20-21. The idea that legislators are "single-minded seekers of reelection" is most closely associated with the work DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 5 (1974).
112. For a significant contrasting position of the same vintage, see, for example, RICHARD F. FENNO, JR., CONGRESSMEN IN COMMITTEES (1973).
113. At their broadest, Farber and Frickey argued generally that "crucial features of the political world do not fit the economic model" of political behavior. FARBER & FRICKEY, LAW AND PUBLIC CHOICE, supra note 8, at 24. In particular, they noted that economic theories cannot explain the most basic of political acts-voting by individuals in popular elections. See id. Citing data from a then-recent political science study, they argued that given the infinitesimally small chance that a single vote will change any election's outcome, "no economically rational person" would choose to incur the time and expense necessary to vote.
114. Id. at 24 & n.53 (citing and discussing Carroll B. Foster, The Performance of Rational Voter Models in Recent Presidential Elections, 78 AM. POL. SCI. REV. 678 (1984)).
115. Accordingly, they asked: "[I]f public choice cannot explain such a fundamental aspect of political behavior as voting, can we trust its explanations of other political behavior?" Id. at 25.
116. Id. at 27 (citing Joseph H. Kalt & Mark A. Zupan, Capture and Ideology in the Economic Theory of Politics, 74 AM. ECON. REV. 279,282-84 (1979)).
117. See id. at 29-33; see also sources cited in id. at 29 n.75. Acknowledging that a legislator's ADA rating might itself be determined, in part, by the economic interests of his or her constituents, Farber and Frickey emphasized that "[sjeveral researchers have developed techniques of 'cleansing' ADA scores of their association with constituent makeup." Id. at 30. Under that approach, they added, the legislators' votes still were "significantly related" to their ideological scores. Id.
118. Id. at 33.
119. See id. Indeed, noting that "legislation today often involves numerous conflicting interest groups," they added that "the possibility of 'pulling a fast one' in the legislative history is somewhat remote. What one group smuggles into the history, other groups have an incentive to find and counter."
120. Id. at 98 (citing MORRIS FIORINA, CONGRESS: KEYSTONE OF THE WASHINGTON ESTABLISHMENT 122 (2d ed. 1989)).
121. Id. at 99.
122. Id. at 48 (quoting William H. Panning, Formal Models of Legislative Process, in HANDBOOK OF LEGISLATIVE RESEARCH 689 (Gerhard Lowenberg et al. eds., 1985)).
123. See supra text accompanying notes 46-47 (discussing the phenomenon of cycling).
124. FARBER & FRICKEY, LAW AND PUBLIC CHOICE, supra note 8, at 48. (citing KENNETH J. ARROW, COLLECTED PAPERS OF KENNETH J. ARROW: SOCIAL CHOICE AND JUSTICE 78-87 (1983);
125. AMARTYA SEN, COLLECTIVE CHOICE AND SOCIAL WELFARE 166-72 (1970)).
126. Id. at 49.
127. Id. at 49-50; see also id. at 50 n.23 (citing Kenneth J. Shepsle & Barry Weingast, Structure-Induced Equilibrium and Legislative Choice, 37 PUB. CHOICE 502, 503-19 (1981);
128. Kenneth J. Shepsle & Barry Weingast, Uncovered Sets and Sophisticated Voting Outcomes with Implications for Agenda Institutions, 28 AM. J. POL. Sa. 49, 69 (1984);
129. Kenneth J. Shepsle & Barry Weingast, When Do Rules of Procedure Matter?, 46 J. POL. 206, 208 (1984)). Farber and Frickey added from that starting premise, political scientists have been able to develop mathematical models capable of describing "the focal area of legislative outcomes." Id. at 51.
130. Farber and Frickey also suggested that the underlying concern about manipulation can easily be overstated, given the dynamics of the legislative process. See id. at 61 ("When agenda setters use their power to reach results that are systematically opposed to the preferences of the legislators, they are more likely to face challenges to their power.").
131. For a similar analysis, see McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 LAW & CONTEMP. PROBS. 3, 3, 24-25 (1994).
132. FARBER & FRICKEY, LAW AND PUBLIC CHOICE, supra note 8, at 57, 59.
133. Id. at 61.
134. Id. at 100.
135. Id. at 98.
136. As Farber and Frickey noted, id. at 101 & n.42, Judge Friendly made a similar observation, suggesting that members of Congress understood a bill's general purpose and "relied for the details on members who sat on the committees particularly concerned, and were quite willing to adopt these committees' will on subordinate points as their own." HENRY J. FRIENDLY, Mr. Justice Frankfurter and the Reading of Statutes, in BENCHMARKS 196, 216 (1967).
137. See, e.g., Breyer, supra note 36, at 867 (noting the deregulation of the airline and trucking industries, despite industry opposition);
138. Herbert Hovenkamp, Legislation, Weil-Being, and Public Choice, 57 U. CHI. L. REV. 63, 88-89 (1990) (citing empirical studies suggesting that legislation is not "for sale" to interest groups);
139. Kelman, supra note 17, at 220-23 (citing deregulation as refuting the economic theory of legislation); Rubin, supra note 13, at 31-38 (discussing the varied factors that influence legislative voting).
140. See, e.g., Bernard Grofinan, Public Choice, Civil Republicanism, and American Politics: Perspectives of a "Reasonable Choice" Modeler, 71 TEX. L. REV. 1541, 1553-66 (1993) (cataloguing political scientists' arguments concerning the rarity of observed legislative cycling);
141. Herbert Hovenkamp, Arrow's Theorem: Ordinalism and Republican Government, 75 IOWA L. REV. 949, 954-66 (1990) (discussing mechanisms for avoiding cycling in the legislative process);
142. Zeppos, supra note 52, at 1346 (discussing the implications of structure-induced equilibrium for statutory interpretation);
143. see also, e.g., James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response?, 93 MICH. L. REV. 1, 46, 54 (1994) (arguing that "explanations offered in committee reports or in bill managers' statements ... derive directly from Congress's own policymaking authority" and that legislators face incentives to speak accurately).
144. Professors McCubbins, Noll, and Weingast thus argued that committee chairs and floor managers explain legislative intent or purpose as "appointed agent[s] of the legislative majority that passed the chamber's version of the statute" and that such legislators "can be subject to sanctions and loss of reputation" if they misrepresent the understanding of the enacting coalition. McNollgast, supra note 74, at 240. Under that assumption, legislative history produced by those actors should fall within a range that is broadly acceptable to the majority.
145. For a criticism of that position, see Miriam R. Jorgensen & Kenneth A. Shepsle, A Comment on the Positive Canons Project, 57 LAW & CONTEMP. PROBS. 43, 47 (1994) ("The temptation for a windfall opportunity may be worth, in any given circumstance, the degradation in value of the spokesperson's future dealings ....").
146. FARBER & FRICKEY, LAW AND PUBLIC CHOICE, supra note 8, at 24, 60-61.
147. For my own efforts to do so, see John F. Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387,2408-19 (2003).
148. See infra text accompanying notes 105-115
149. See infra text accompanying notes 110,116.
150. As discussed below, Judge Easterbrook's work showed somewhat greater continuity, especially in the sense that fairly early on he developed the analytical framework for what would become second-generation textualism on the Supreme Court. See infra notes 105-108.
151. See, e.g., Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S. Ct. 1324, 1342 (2010) (Scalia, J., concurring in part and concurring in the judgment) ("Even indulging the extravagant assumption that Members of the House other than members of its Committee on the Judiciary read the Report (and the further extravagant assumption that they agreed with it), the Members of the Senate could not possibly have read it, since it did not exist when the Senate passed the [relevant legislation].
152. ") Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 73 (2004) (Scalia, J., dissenting) ("The Congressional Record or committee reports are used to make words appear to come from Congress's mouth which were spoken or written by others (individual Members of Congress, congressional aides, or even enterprising lobbyists).");
153. 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, 34 (Amy Gutmann ed., 1997) ("One of the routine tasks of the Washington lawyer-lobbyist is to draft language that sympathetic legislators can recite in a prewritten 'floor debate'-or, even better, insert into a committee report.").
154. See, e.g., Begier v. IRS, 496 U.S. 53, 68 (1990) (Scalia, J., concurring in the judgment) ("Congress conveys its directions in the Statutes at Large, not in excerpts from the Congressional Record-");
155. Blanchard v. Bergeron, 489 U.S. 87, 98 (1989) (Scalia, J., concurring in part and concurring in the judgment) ("Congress is elected to enact statutes rather than point to cases [in committee reports] . . . .");
156. United States v. Taylor, 487 U.S. 326, 345-46 (1988) (Scalia, J., concurring in part) ("It should not be possible, or at least should not be easy, to be sure of obtaining a particular result in this Court without making that result apparent on the face of the bill which both Houses consider and vote upon, which the President approves ....").
157. See generally, Scalia, Legislative History Speech, supra note 29. Indeed, in response to the contention that courts should credit committee reports because Congress implicitly delegated detail-setting authority to the originating committees in each House, Justice Scalia merely stated that our system assumes that such "de facto delegation" is directed to agencies and courts; he did not make a constitutional objection of any discernible sort. In particular, he argued: It is realistic to posit, of course, a sort of resignation to de facto delegation. That is to say, if the members of Congress do not specify, in the law that they enact, all the details of its application they must realize that someone else will have to "fill in" those details. But the theory of our system is that de facto delegation goes initially to the agency administering the law and, ultimately, to the courts. Scalia, Legislative History Speech, supra note 29, at 8.
158. Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring in the judgment)
159. (quoting Aldridge v. Williams, 44 U.S. (3 How.) 9, 24 (1845)).
160. Bank One Chi., N.A. v. Midwest Bank & Trust Co., 516 U.S. 264, 280 (1996) (Scalia, J., concurring in part and concurring in the judgment).
161. See Antonin Scalia, Use of Legislative History: Judicial Abdication to Fictitious Legislative Intent 18-19 (speech written in 1992) (transcript on file with the California Law Review): It may or may not be true that the houses entertain ... a desire [to have committee reports treated as authoritative] .... But if it is true, it is unconstitutional. "All legislative powers herein granted," the Constitution says, "shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." The legislative power is the power to make laws, not the power to make legislators. It is nondelegable. Congress can no more authorize one committee to "fill in the details" of a particular law in a binding fashion than it [can] authorize a committee to enact minor laws. Whatever Congress has not itself prescribed is left to be resolved by the Executive or (ultimately) the Judicial Branch.
162. The 1980s incarnation of the speech, as noted, contained nothing like this constitutional claim.
163. I explained and elaborated on Justice Scalia's theory in John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REV. 673 (1997). Among other things the constitutionally grounded version of textualism was more openly formalistic. See Scalia, supra note 88, at 25 ("[O]f course it's formalistic! The rule of law is about form.").
164. See infra Part III.B.
165. See, e.g., Brudney, supra note 81, at 45-46 ("Given that Congress as an institution has chosen to order its legislative affairs in this manner, considerations of deference toward Congress would seem to warrant respect for its designated legislative process as well." (citation omitted)); Costello, supra note 52, at 67 ("If Congress chooses to rely heavily on committees in selecting and shaping legislation, why should courts deny the importance of the committee system when called upon to give meaning to the product that emerges from that system?" (citation omitted)); Spence, supra note 17, at 588 ("[T]extualism enhances judicial power at the expense of Congress' primacy as the authors and masters of statutes, and at the expense of Congress' right to determine the authoritative sources of statutory meaning."). For an excellent summary of complaints that early textualism interfered in congressional prerogatives over the ordering of its lawmaking process,
166. see Bernard W. Bell, R-E-S-P-E-C-T: Respecting Legislative Judgments in Interpretive Theory, 78 N.C L. REV. 1253, 1257 n.12 (2000).
167. See WILLIAM N. ESKRIDGE, JR., PHILIP P. FRICKEY & ELIZABETH GARRETT, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 794-95 (4th ed. 2007) (summarizing the current approach). A number of studies corroborate the trends of reduced reliance on legislative history and enhanced reliance on textual cues.
168. See, e.g., James J. Brudney & Corey Ditslear, The Decline and Fall of Legislative History? Patterns of Supreme Court Reliance in the Burger and Rehnquist Eras, 89 JUDICATURE 220, 222 (2006) (documenting that in workplace law cases, "the Court's reliance on legislative history declined from 51 percent during the Burger years to 29 percent in the Rehnquist era");
169. Michael H. Koby, The Supreme Court's Declining Reliance on Legislative History: The Impact of Justice Scalia's Critique, 36 HARV. J. ON LEGIS. 369, 386 (1999) (reporting that in the six years before Justice Scalia's appointment, the Court averaged 3.47 citations of legislative history per opinion and that the average in the twelve years after his appointment dropped to 1.87);
170. Thomas W. Merrill, Textualism and the Future of the Chevron Doctrine, 72 WASH. U. L.Q. 351, 356-63 (1994) (discussing the Rehnquist Court's shift toward arguments based on semantic meaning and linguistic canons);
171. Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court's Use of Dictionaries, 47 BUFF. L. REV. 227, 252-60 (1999) (documenting a dramatic increase in the Court's citation of dictionaries in the Rehnquist era). Not everyone agrees with this perception of the Court's trajectory.
172. See, e.g., Charles Tiefer, The Reconceptualization of Legislative History in the Supreme Court, 2000 Wis. L. REV. 205 (2000) (arguing that textualism peaked in 1994 and that the Court has reasserted much of its reliance on legislative history since);
173. Jane S. Schacter, The Confounding Common Law Originalism in Recent Supreme Court Statutory Interpretation: Implications for the Legislative History Debate and Beyond, 51 STAN. L. REV. 1 (1998) (documenting the Court's use of legislative history and other extratextual sources during October Term 1996).
174. 545 U.S. 546, 568-69 (2005). In a similar vein, Professor Eskridge, who is a friendly critic of textualism, has written that modern textualism usefully underscored that "the Court should devote more of its energy to analyzing statutory texts," while "reminding courts and attorneys that legislative history is, at best, secondary and supporting evidence of statutory meaning."
175. William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 625 (1990). In addition, textualism caused the Court to be "more critical of the legislative history it uses," making sure that the legislative history in question has sufficient indicia of reliability and relevance. Id.
176. To be fair, Judge Easterbrook has always been somewhat less fierce in his criticism of legislative history: Textualists, like other users of language, want to know its context, including assumptions shared by the speakers and the intended audience. Words in legislation may be terms of legal art. Debates and remarks may tell us whether the words in a statute appeal to a lay understanding or to a technical one. Because laws themselves do not have purposes or spirits-only the authors are sentient-it may be essential to mine the context of the utterance out of the debates ....
177. Frank H. Easterbrook, Legislative History Values, 66 CHI.-KENT L. REV. 441,443 (1990). At the same time, Judge Easterbrook has also always been on the lookout for abuses of the practice.
178. See, e.g., Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 448 (7th Cir. 2005) (arguing that "when the legislative history stands by itself... unconnected to any enacted text, it has no more force than an opinion poll of legislators");
179. Cont'l Can Co. v. Chi. Truck Drivers, 916 F.2d 1154, 1156-57 (7th Cir. 1990) (showing how the Senate sponsor of a piece of legislation sought to use legislative history to manipulate its meaning). As discussed below, his main concern throughout has been to limit imaginative reconstruction of legislative intent that ascribes meaning that the language of a statute cannot bear. See infra text accompanying notes 105-108.
180. See, e.g., Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 130 S. Ct. 1396, 1411 (2010) (Scalia, J., concurring in part and concurring in the judgment);
181. Zedner v. United States, 547 U.S. 489, 509-11 (2006) (Scalia, J., concurring in part and concurring in the judgment);
182. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 267 (2004) (Scalia, J., concurring in the judgment);
183. Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 219 (1994) (Scalia, J., concurring in the judgment);
184. see also Samantar v. Yousuf, 130 S. Ct. 2278, 2294 (2010) (Scalia, J., concurring in the judgment) (arguing that "legislative history is almost never the real reason for the Court's decision-and make-weights do not deserve a lot of the Court's time").
185. Periodically, Justice Scalia will break new ground on the question. See, e.g., FloresFigueroa v. United States, 129 S. Ct. 1886, 1895 (2009) (Scalia, J., concurring in the ju dgment) (arguing that the rule of lenity precludes the use of legislative history to expand the reach of a criminal statute and likening such use to "the practice of Caligula, who reportedly 'wrote his laws in a very small character, and hung them up upon high pillars, the more effectually to ensnare the people'"
186. (quoting 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 46 (1765))). But for the most part, the salience of the issue seems to have diminished somewhat.
187. As I explained in an earlier article, textualists understand that semantic meaning
188. depends on the conventions that a linguistic community shares for understanding language in context. For textualists, it includes not merely dictionary definitions, but also colloquial meanings, the technical definitions of terms of art, and background conventions associated with certain phrases or types of legislation. See Manning, supra note 84, at 2456-76.
189. Church of the Holy Trinity v. United States, 143 U.S. 457, 459 (1892).
190. For a more extended account of the Court's theory of strong purposivism, see John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1, 10-15 (2001).
191. See, e.g., Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 452-54 (1989);
192. Cal. Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 284 (1987);
193. Anderson Bros. Ford v. Valencia, 452 U.S. 205, 222 n.20 (1981);
194. United Hous. Found., Inc. v. Forman, 421 U.S. 837, 849 (1975);
195. Nat'l Woodwork Mfrs. Ass'n v. NLRB, 386 U.S. 612, 620 (1967);
196. United States v. Pub. Util. Comm'n, 345 U.S. 295, 315 (1953);
197. Johansen v. United States, 343 U.S. 427, 431 (1952);
198. Int'l Longshoremen's & Warehousemen's Union v. Juneau Spruce Corp., 342 U.S. 237, 243 (1952).
199. See, e.g., Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998) ("Statutes are compromises among legislators who may hold incompatible conceptions of the public weal.... Instead of relying on 'common sense', which is an invitation to treat the law as if one side or the other had its way, a court should implement the language actually enacted - provided the statute is not internally inconsistent or otherwise absurd.");
200. Heath v. Varity Corp., 71 F.3d 256, 258 (7th Cir. 1995) (Easterbrook, J.) ("Tensions among statutory provisions are common. Legislation reflects compromise among competing interests.... It upsets the legislative balance to push the outcome farther in either direction.");
201. Chi. Prof 1 Sports Ltd. P'ship v. NBA, 961 F.2d 667, 671 (7th Cir. 1992) ("Compromises draw unprincipled lines between situations that strike an outside observer as all but identical. The limitation is part of the price of the victory achieved, a concession to opponents who might have been able to delay or block a bill even slightly more favorable to the proponents.").
202. See, e.g., Contract Courier Servs. v. Research & Special Programs Admin., U.S. Dep't of Transp., 924 F.2d 112, 115 (7th Cir. 1991) (Easterbrook, J.) ("Statutes do more than point in a direction .... They achieve a particular amount of that objective, at a particular cost in other interests.");
203. Trs. of Iron Workers Local 473, Pension Trust v. Allied Products Corp., 872 F.2d 208, 213 (7th Cir. 1989) ("The crafting of specific language often reflects legislative compromise reached after hard fought battles over the means to reach even common goals.").
204. See, e.g., Adams v. Plaza Fin. Co., 168 F.3d 932, 939 (7th Cir. 1999) (Easterbrook, J., dissenting) ("Congress may prefer standards over rules in some statutes, yet choose rules over standards in others.");
205. Fox Valley & Vicinity Const. Workers Pension Fund v. Brown, 897 F.2d 275, 284 (7th Cir. 1990) (Easterbrook, J., dissenting) ("But whether to have rules (flaws and all) or more flexible standards (with high costs of administration and erratic application) is a decision already made by legislation.").
206. Easterbrook, supra note 37, at 68;
207. see also, eg., City of Joliet v. New West, L.P., 562 F.3d 830, 837 (7th Cir. 2009) (Easterbrook, C.J.) ("When courts rely on purpose clauses, rather than the concrete rules that the political branches have selected to achieve the stated ends, judges become effective lawmakers, bypassing the give-and-take of the legislative process.");
208. Jaskolski v. Daniels, 427 F.3d 456, 462 (7th Cir. 2005) (Easterbrook, J.) ("Judges ought not turn a rule into a standard; that amounts to little more than disagreement with a legislative choice. Boosting the level of generality by attempting to discern and enforce legislative 'purposes' or 'goals' instead of the enacted language is just a means to turn rules into standards.").
209. As compared with the Supreme Court's textualists, Judge Easterbrook showed somewhat greater continuity in his concerns between the two periods. See, e.g., Walton v. United Consumers Club, Inc., 786 F.2d 303, 311 (7th Cir. 1986) (emphasizing legislative compromise);
210. Frank H. Easterbrook, Foreword: The Supreme Court, 1983 Term-Foreword: The Court and the Economic System, 98 HARV. L. REV. 4, 46 (1984) (same);
211. Easterbrook, supra note 11, at 546-47 (arguing that when the judiciary adapts statutory rules to make them more effective in achieving an apparent legislative goal, that move "denies to legislatures the choice of creating or withholding gapfilling authority").
212. See Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 646-47 (1990) (Blackmun, J.) ("[NJo legislation pursues its purposes at all costs.... [I] frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objective must be the law."
213. (quoting Rodriguez v. United States, 480 U.S. 522, 525-26 (1987) (per curiam)));
214. Bd. of Governors of the Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 374 (1986) (Burger, C.J.) ("Invocation of the 'plain purpose' of legislation at the expense of the terms of the statute itself takes no account of the processes of compromise ....").
215. See, e.g., Wyeth v. Levine, 129 S. Ct. 1187, 1215-16 (2009) (Thomas, J., concurring in the judgment) ("[A] statute's text might reflect a compromise between parties who wanted to pursue a particular goal to different extents.");
216. Pharm. Research & Mfrs. of Am. v. Walsh, 538 U.S. 644, 678 (2003) (Thomas, J., concurring in the judgment) (explaining that "the compromises embodied in the Medicaid Act" make clear "the impossibility of defining 'purposes' in complex statutes at... a high level of abstraction");
217. Barnhart v. Peabody Coal Co., 537 U.S. 149, 183-84 (2003) (Scalia, J., dissenting) ("The reality is that the Coal Act reflects a compromise between the goals of perfection in assignments and finality.... The best way to be faithful to the resulting compromise is to follow the statute's text, as I have done above - not to impute to Congress one statutory objective favored by the majority of this Court at the expense of other, equally plausible, statutory objectives.");
218. Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 561-62 (2001) (Scalia, J., dissenting) ("To remove that limit is to repeal subsection (a)(16) altogether, and thus to eliminate a significant quid pro quo of the legislative compromise. We have no authority to 'rewrite [the] statute and give it an effect altogether different' from what Congress agreed to."
219. (quoting R.R. Ret. Bd. v. Alton R. Co., 295 U.S. 330, 362 (1935)));
220. E. Associated Coal Corp. v. United Mine Workers, 531 U.S. 57, 68-69 (2000) (Scalia, J., concurring in the judgment) ("The final form of a statute ... is often the result of compromise among various interest groups, resulting in a decision to go so far and no farther.");
221. Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 726 (1995) (Scalia, J., dissenting) ("Deduction from the 'broad purpose' of a statute begs the question if it is used to decide by what means (and hence to what length) Congress pursued that purpose; to get the right answer to that question there is no substitute for the hard job... of reading the whole text").
222. See Jonathan T. Molot, 7Ae Rise and Fall of Textualism, 106 COLUM. L. REV. 1, 32-33 (2006).
223. Artuz v. Bennett, 531 U.S. 4, 10 (2000).
224. Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 93-94 (2002).
225. Bamhart v. Sigmon Coal Co., 534 U.S. 438, 461 (2002) (citations omitted).
226. See, e.g., Dean v. United States, 129 S. Ct. 1849, 1853 (2009) (noting that '"we ordinarily resist reading words or elements into a statute that do not appear on its face.'"
227. (quoting Bates v. United States, 522 U.S. 23, 29 (1997)));
228. Carcieri v. Salazar, 129 S. Ct 1058, 1066-67 (2009) ("We need not consider [the parties'] competing policy views, because Congress' use of the word 'now' in § 479 speaks for itself and 'courts must presume that a legislature says in a statute what it means and means in a statute what it says there.'"
229. (quoting Conn. Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992)));
230. Jimenez v. Quarterman, 129 S. Ct 681, 685 (2009) ("It is well established that, when the statutory language is plain, we must enforce it according to its terms.");
231. Hall St. Assoes., LLC v. Mattel, Inc., 552 U.S. 576, 586 (2008) (holding that "the text [of the Federal Arbitration Act] compels a reading of the §§ 10 and 11 categories as exclusive");
232. Boulware v. United States, 552 U.S. 421, 434-36 (2008) (relying on the "plain text" of the Tax Code);
233. Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 228 (2008) ("We are not at liberty to rewrite the statute to reflect a meaning we deem more desirable. Instead, we must give effect to the text Congress enacted...." (footnote omitted));
234. Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 171 (2007) ("FELA's text does not support the proposition that Congress meant to take the unusual step of applying different causation standards in a comparative negligence regime, and the statute's remedial purpose cannot compensate for the lack of a statutory basis.").
235. Despite its increasing emphasis on adherence to a clear text, the Court occasionally applies strongly purposive reasoning at the apparent expense of the most natural reading of the text.
236. See, e.g., Clinton v. New York, 524 U.S. 417, 428-29 (1998) (broadening an expedited review provision because the literal meaning undermined the statutory purpose to provide "a prompt and authoritative judicial determination of the constitutionality of the [Line Item Veto] Act");
237. Lewis v. United States, 523 U.S. 155, 160 (1998) (refusing to enforce a statute's conventional meaning when "a literal reading of the words... would dramatically separate the statute from its intended purpose");
238. see also Daniel J. Meltzer, The Supreme Court's Judicial Passivity, 2002 SUP. CT. REV. 343, 364-68 (arguing that the Court engages in significant interpretive lawmaking in its implied preemption cases).
239. Even when the Court's recent decisions have applied strongly purposive reasoning, it has taken pains to show that its outcomes fit within the acceptable semantic confines of the enacted text.
240. See, e.g., Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ, 550 U.S. 81, 94-99 (2007) (offering an elaborate defense of why the semantic meaning of the word "percentile" in the Federal Impact Aid Act could accommodate the Act's apparent purpose);
241. Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 591 (2004) (carefully exploring the usage of the word "age" to demonstrate that "discrimination] . . . because of [an] individual's age," 29 U.S.C. § 623(a)(1) (2006), was consistent with the Age Discrimination in Employment Act's apparent purpose to protect older workers against younger).
242. In recent years, Justices Stevens and Breyer have been the Court's most unflinching defenders of the practice. See W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 115 (1991) (Stevens, J., dissenting) ("[W]e do the country a disservice when we needlessly ignore persuasive evidence of Congress' actual purpose and require it ... to restate its purpose in more precise English whenever its work product suffers from an omission or inadvertent error.");
243. STEPHEN G. BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION 87-101 (2005) (defending strong purposivism).
244. Indeed, the Court has not cited Holy Trinity favorably in a majority opinion since 1989.
245. See Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 454 (1989).
246. In Zuni Public School District, Justice Stevens wrote a concurrence in which he invoked Holy Trinity and defended its strongly purposive methodology. Zuni Pub. Sch. Dist., 550 U.S. at 107 n.3 (Stevens, J., concurring). No other Justice joined his opinion.
247. I have laid out this argument in greater detail in Manning, supra note 108, at 70-78.
248. See JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT: LOGICAL FOUNDATIONS OF CONSTITUTIONAL DEMOCRACY 233-48 (1962) (making this point about bicameralism even when the two houses are the same size). Indeed, by requiring equal representation of states in the Senate, the Constitution explicitly protects the political minority made up of small-state residents. See U.S. CONST, art. I, §3, cl. 1;
249. Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 TEX. L. REV. 1321, 1371-72 (2001) (discussing this feature of the Constitution).
250. The Constitution authorizes each House to adopt rules of proceeding for the conduct of its business. See U.S. CONST, art. I, § 5.
251. See, e.g., Kenneth A. Shepsle & Barry R. Weingast, The Institutional Foundations of Committee Power, 81 AM. POL. SCI. REV. 85, 89 (1987) (noting, in general, that "veto groups are pervasive in legislatures" and, in particular, that "[a] small group of senators... may engage in filibuster and other forms of obstruction" and that "[a]ny individual senator may refuse unanimous consent to procedures that would expedite passage of a committee bill").
252. In other words, the Court assumes "that a legislature says in a statute what it means and means in a statute what it says there." Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (Thomas, J.).
253. Judge Easterbrook emphasized the importance of the procedural hurdles even in his early writings. See, e.g., In re Sinclair, 870 F.2d 1340, 1343-44 (7th Cir. 1989) ("Desires become rules only after clearing procedural hurdles, designed to encourage deliberation and expose proposals (and arguments) to public view and recorded vote.");
254. Frank H. Easterbrook, What Does Legislative History Tell Us?, 66 CHI.-KENT L. REV. 441, 445 (1990) ("What distinguishes laws from the results of opinion polls conducted among legislators is that the laws survived a difficult set of procedural hurdles and either passed by a two-thirds vote or obtained the President's signature." (emphasis omitted)).
255. See supra text accompanying notes 74-79 (discussing Färber and Frickey's views).
256. See, e.g., Barnhart v. Sigmon Coal Co., 534 U.S. 438, 462 (2002);
257. E. Associated Coal Corp. v. United Mine Workers, 531 U.S. 57, 68-69 (2000) (Scalia, J., concurring in the judgment).
258. As Jeremy Waldron has written, legislation is "the product of a multi-member assembly, comprising a large number of persons of quite radically differing aims, interests, and backgrounds." JEREMY WALDRON, LAW AND DISAGREEMENT 125 (1999). Accordingly, any statute's "specific provisions" might be "the result of compromise and line-item voting." Id.
259. Modern textualists start from the premise that while interpretation is not mechanical, legislators can communicate effectively with judges, administrators, and the public because of their common membership in a linguistic community with shared practices for understanding a vast array of words and phrases in context.
260. See, e.g., FREDERICK F. SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE 64-68 (1991);
261. Jeremy Waldron, Legislators' Intentions and Unintentional Legislation, in LAW AND INTERPRETATION: ESSAYS IN LEGAL PHILOSOPHY 329, 339 (Andrei Marmor ed., 1995). That assumption about communication is not universally shared.
262. See, e.g., James Boyle, The Politics of Reason: Critical Legal Theory and Local Social Thought, 133 U. PA. L. REV. 685, 708-11, 728 (1985) (contending that the linguistic formulations of legal rules are indeterminate);
263. Joseph William Singer, 77;e Player and the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1, 19,21 (1984) (arguing that rules "generally do not determine the scope of their own application").
264. Judge Easterbrook thus has written: A legislature that seeks to achieve Goal X can do so in one of two ways. First, it can identify the goal and instruct courts or agencies to design rules to achieve the goal.... The second approach is for the legislature to pick the rules. It pursues Goal X by Rule Y. The selection of Y is a measure of what Goal X was worth to the legislature, of how best to achieve X, and of where to stop in pursuit of X. Like any other rule, Y is bound to be imprecise, to be over- and under-inclusive. This is not a good reason for a court, observing the inevitable imprecision, to add to or subtract from Rule Y on the argument that, by doing so, it can get more of Goal X. The judicial selection of means to pursue X displaces and directly overrides the legislative selection of ways to obtain X. It denies to legislatures the choice of creating or withholding gapfilling authority. Easterbrook, supra note 11, at 546-47 (footnotes omitted).
265. Mistretta v. United States, 488 U.S. 361, 417 (1989) (Scalia, J., dissenting).
266. MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 231 n.4 (1994) (Scalia, J.).
267. W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98 (1991) (citation omitted);
268. see also, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998) (Scalia, J.) ("[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.");
269. Brogan v. United States, 522 U.S. 398, 403 (1998) (Scalia, J.) (recognizing "that the reach of a statute often exceeds the precise evil to be eliminated" and that "it is not, and cannot be, [the Court's] practice to restrict the unqualified language of a statute to the particular evil that Congress was trying to remedy - even assuming that it is possible to identify that evil from something other than the text of the statute itself).