Statutory interpretation in the Roberts court's first era: An empirical and doctrinal analysis

Hastings Law Journal

Volumn 62, Issue 2, 2010, Pages 221-296

  Krishnakumar, Anita S ^a  

^a ST JOHN'S UNIVERSITY   (United States)

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EID: 79952128090     PISSN: 00178322     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (444)

1. See, e.g., Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in ANTONIN SCAUA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 16-37 (1997) (advocating a textualist approach and denouncing the resort to legislative history or substantive policy norms in interpreting statutes);
2. see also J.M. Balkin, Deconstructive Practice and Legal Theory, 96 YALE L.J. 743, 772-73 (1987) (describing originalism as the preferred method of statutory interpretation for most judges and lawyers);
3. Stephen Breyer, On The Uses of Legislative History in Interpreting Statutes, 65 S. CAL. L. REV. 845, 847 (1992) (defending legislative history use as legitimate);
4. Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, II HARV. J.L. & PUB. POL'Y 59,62 ( 1988) ("[O]riginal intent rather than an objective inquiry... increases the discretion, and therefore the power, of the court.");
5. William D. Popkin, An 'Internal' Critique of Justice Scalia's Theory of Statutory Interpretation, 76 MINN. L. REV. 1133, 1138 (1992) (offering a critical look at "Justice Scalia's text- and rule-based approach" to interpreting statutes);
6. W. David Slawson, Legislative History and the Need to Bring Statutory Interpretation Under the Rule of Law, 44 STAN. L. REV. 383, 383-84 (1992) ("I construct a second theory, 'law as a statute.'... [This will] provide a principled and effective constraint on the use of legislative history.");
7. Kenneth W. Starr, Observations About the Use of Legislative History, 1987 DUKE L.J. 371, 377 (criticizing legislative history use).
8. Textualism is an interpretive philosophy that prioritizes the statute's text above all else. Proponents of this approach urge courts to resolve statutory cases solely with reference to the written text and discourage consultation of non-textual sources such as legislative history. See, e.g., Scalia, supra note I, at 16-37;
9. see also Frank H. Easterbrook, Legal Interpretation and the Power of the Judiciary, 7 HARV. J.L. & PUB. POL'Y 87, 89-94 (1984);
10. John F. Manning, Competing Presumption About Statutory Coherence, 74 FORDHAM L. REV. 2009, 2027 (2006).
11. Intentionalism instructs courts to resolve interpretive questions in statutory cases by asking how the enacting Congress would have decided the question. Intentionalism invites substantial reliance on legislative history and other interpretive tools indicative of the enacting Congress's desires.
12. See, e.g., RICHARD A. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 286-87 (1985) ("[T]he judge should try to put himself in the shoes of the enacting legislators and figure out how they would have wanted the statute applied to the case before him.");
13. Roscoe Pound, Spurious Interpretation, 7 COLUM. L. REV. 379, 381 (1907) ("The object of genuine interpretation is to discover the rule which the lawmaker intended to establish; to discover the intention with which the law-maker made the rule, or the sense which he attached to the words wherein the rule is expressed.").
14. See, e.g., William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 623-25 (1990) ("[N]ew textualism posits that once the Court has ascertained a statute's plain meaning, consideration of legislative history becomes irrelevant.");
15. Thomas W. Merrill, Textualism and the Future of the Chevron Doctrine, 72 WASH. U. L.Q. 351, 355-57 (1994) (finding an increase in "textualism" and a corresponding decline in the Court's use of legislative history between 1981 and 1992);
16. Richard J. Pierce, Jr., The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State, 95 COLUM. L. REV. 749, 750-52 (1995) (criticizing the Court's overuse of textualism);
17. Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 Sup. Cr. REV. 231, 246 ("[P]lain language discourse dominates the Court's statutory interpretation cases.").
18. See James J. Brudney & Corey Ditslear, Canons of Construction and the Elusive Quest for Neutral Reasoning, 58 VAND. L. REV. I, 15 (2005).
19. 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) (finding a higher rate of legislative history use, between 40% and 50%, in the period from 1969 to 1986, with a drop off to 25% from 1986 to 2002);
20. Merrill, supra note 4, at 355 (finding that use of legislative history had fallen to 18% by the 1992 Term);
21. Patricia M. WaId, 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, 280, 287-88 (1990) (finding that the Court used legislative history in almost every statutory interpretation case in the 1981 Term, with the rate declining to 75% for the 1988-1989 Term);
22. see also David S. Law & David Zaring, Law Versus Ideology: The Supreme Court and the Use of Legislative History, 51 WM. & MARY L. REV. 1653, 1683-84 (2010) (tracking, inter alia, the Court's rate of legislative history use from 1953 to 2006).
23. See William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 GEO. L.J. 1083, 1098 (2008).
24. See 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, 4(1998).
25. See FRANK B. CROSS, THE THEORY AND PRACTICE OF STATUTORY INTERPRETATION 136-37, 143-48 (2009);
26. Nicholas S. Zeppos, The Use of Authority in Statutory Interpretation: An Empirical Analysis, 70 TEX. L. REV. 1073, 1074-76 (1992).
27. See Schacter, supra note 8, at 5.
28. Id. 12. The study includes cases from the second half of the Court's 2005 Term (following Justice Alito's ascension to the bench at the end of January, 2006) and from the full 2006, 2007, and 2008 Terms.
29. Schacter calls this latter interpretive resource "judicially- selected policy norms." Schacter, supra note 8, at 5, 12.
30. Substantive canons reflect a judicially preferred policy position. They are not predicated on presumptions about what the words of a statute should mean, but instead reflect judicial rules of thumb about how to treat statutory text in light of constitutional priorities, pre-enactment common law practices, or specific statutorily-based policies.
31. See infra pages 243-44 for a detailed explanation and examples of different kinds of substantive canons.
32. Each of these interpretive tools is explained in detail infra page 241-45.
33. Each of these interpretive resources is examined in detail infra pages 245-46.
34. See discussion infra Part I and accompanying notes (discussing Zeppos's and Schacter's findings in previous studies).
35. See Brudney & Ditslear, supra note 5, at 35.
36. See Schacter, supra note 8, at 5.
37. See Merrill, supra note 4, at 355.
38. See Eskridge & Baer, supra note 7, at 1090.
39. See CROSS, supra note 9, at 144-46
40. Zeppos, supra note 9, at 1106.
41. See, e.g., CROSS, supra note 9, at 147-48
42. Schacter, supra note 8, at 21
43. Zeppos, supra note 9, at 1107-08.
44. See, e.g., CROSS, supra note 9, at 157
45. Zeppos, supra note 9, at 1119 ("eclectic").
46. Zeppos, supra note 9, at 1076-88.
47. Zeppos grouped all of the sources of authority cited by the Court into six larger categories: (1) legislative, (2) executive, (3) judicial, (4) constitutional, (5) canons of interpretation, and (6) other. Id. at 1089.
48. Id. at 1093 (reporting that 84% of cases studied referenced the statute's text).
49. Id. (reporting that congressional reports are cited in 32% of the cases studied, debates in 16.9% of cases studied, and hearing material in 12.6% of the cases studied).
50. Zeppos used the term "originalism" rather than "intentionalism" to describe the interpretive philosophy that focuses on fulfilling the enacting of Congress's intent.
51. See id. at 1078.
52. See id. at 1118-20.
53. Id. at 1097.
54. See id. at 1107-08. Dynamic theories of statutory interpretation focus on the public values or practical consequences of an interpretation, urging courts to construe statutes in a manner that is responsive to current, real-world societal needs.
55. See, e.g., William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479, 1479 (1987) ("Statutes... should... be interpreted 'dynamically,' that is, in light of their present societal, political, and legal context.").
56. See Schacter, supra note 8, at 5, 12, 18, 21.
57. See id. at 18 tbl.I.
58. See, e.g., RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 465 (1990) ("Law as currently conceived... [places] too much emphasis on authority, certitude, rhetoric, and tradition, [and] too little on consequences and on social-scientific techniques for measuring consequences.").
59. See infra Table I (in half of the cases studied, the majority, concurring, and/or dissenting opinions referenced the practical consequences of an interpretation).
60. Schacter, supra note 8, at 16, 18 tbl.I (showing legislative history referenced in 49% of cases studied).
61. Id. at 14 (showing congressional intent referenced in 53% of cases studied, and dictionaries referenced in only 18% of cases studied).
62. See CROSS, supra note 9, at 142-43
63. Frank B. Cross, The Significance of Statutory Interpretive Methodologies, 82 NOTRE DAME L. REV. 1971, 1981 (2007).
64. CROSS, supra note 9, at 143, 164.
65. Id. at 143-44.
66. Id. at 144, 146.
67. Id. at 147.
68. Id. at 146.
69. Id. at 176.
70. See Brudney & Ditslear, Canons, supra note 5, at 5.
71. Id. at 4.
72. See E-mail from James J. Brudney, Newton D. Baker-Baker & Hostetler Professor of Law, Ohio State Univ. Moritz Coll. of Law (Feb. 27, 2008, 10:46 EST) (on file with author). Language canons are based on grammar rules and the arrangement of words or phrases within a statute, while the whole act rule is based on how the different sections of a statute fit together. ESKRIDGE ET AL., infra note 102, at 862
73. Brudney & Ditslear, supra note 5, at 12.
74. See Brudney & Ditslear, supra note 5, at 5 & n.16.
75. See id. at 6.
76. See id. at 35.
77. I made this judgment call because the Federal Rules of Civil Procedure are created in a manner that differs significantly from federal statutes. Whereas federal statutes are enacted into law by both houses of Congress and the President pursuant to Article I, Section 7 of the Constitution; the FRCP are promulgated by the judicial branch, with minimal review by Congress, and do not require the President's approval. Thus, several of the interpretive tools available when construing statutes either are not available with respect to the FRCP or provide a very different kind of context, from a very different perspective, when used to construe the FRCP-including legislative history, intent, other statutes, and text.
78. See Paul D. Carrington & Roger C. Cramton, Judicial Independence in Excess: Reviving the Judicial Duty of the Supreme Court, 94 CORNELL L. REV. 587, 618 (2009)
79. Natasha Dasani, Class Actions and the Interpretation of Monetary Damages Under Federal Rule of Civil Procedure 23(B)(2), 75 FORDHAM L. REV. 165, 194-95 (2006)
80. Catherine T. Strove, The Paradox of Delegation: Interpreting the Federal Rules of Civil Procedure, 150 U. PA. L. REV. 1099, 1100-02 (2002).
81. For a list of the cases examined in the study-and the statutes they interpreted-see Appendix A, on file with the Hastings Law Journal.
82. In order to reduce the risk of inconsistency, I, along with at least one research assistant, separately read and analyzed each opinion, and separately recorded the use of each interpretive resource. In the event of a disagreement, I reviewed and reconsidered the case and made the final determination as to how a particular interpretive resource should be coded.
83. 552 U.S. 74, 79-80 & n.7 (2007).
84. Id. at 76 (alteration in original) (internal quotation marks omitted).
85. Id. at 81-82.
86. 129 S. Ct. 1849 (2009).
87. 18 U.S.C. §924(c)(I)(A)(iii) (2006).
88. Dean, 129 S. Ct. at 1856 (Stevens, J., dissenting).
89. Id. at 1857.
90. Id.
91. 516 U.S. 137, 148 (1995)
92. Specifically, Justice Stevens's dissent argued that the majority's interpretation of the enhancement provision would impose a harsher penalty for an act caused not by an "evil-meaning mind," but by a clumsy hand (that is, accidental discharge of a gun) than it would for an act caused by both an "evil-meaning mind" and an "evil-doing hand" (that is, brandishing a gun with an intent to intimidate). 129 S. Ct. at 1859 (quoting Morissette v. United States, 342 U.S. 246, 251-52 (1952)).
93. Id. at 1857-59 (citing Staples v. United States, 511 U. S. 600, 605-06 (1994);
94. United States v. U.S. Gypsum Co., 438 U. S. 422 (1978);
95. Morissette, 342 U.S. at 251-52).
96. The exception is for legislative history. In addition to a variable that coded "yes" or "no" for legislative history usage, I also created a separate variable that coded for use of legislative history to "corroborate" an interpretation arrived at through other tools versus substantial "reliance" on legislative history to construe a statute. See infra Codebook.
97. See, e.g., Barry Friedman, Taking Law Seriously, 4 PERSPECTIVES ON POL. 261, 266-67 (2006) (criticizing much of the political science literature for, inter alia, focusing on the analysis of bare outcomes in lieu of the content of opinions)
98. Kirk A. Randazzo et al., Checking the Federal Courts: The Impact of Congressional Statutes on Judicial Behavior, 68 J. POL. 1006, 1008 (2006) (noting the lack of empirical studies that attempt to examine the impact of "traditional legal concepts" on judicial behavior)
99. Gregory C. Sisk, The Quantitative Moment and the Qualitative Opportunity: Legal Studies of Judicial Decision Making, 93 CORNELL L. REV. 873, 884-86 (2008) (reviewing FRANK B. CROSS, DECISION MAKING IN THE U.S. COURTS OF APPEALS (2007)) ("[T]he law necessitates [empirical studies]... examining and classifying the content of judicial opinions rather than merely counting outcomes in cases.").
100. See, e.g., Frank B. Cross et al., Citations in the U.S. Supreme Court: An Empirical Study of Their Use and Significance, 2010 U. ILL. L. REV. 489, 509 (finding that the need to legitimate the Court's rulings is a significant factor contributing to its citation of precedent)
101. James H. Fowler & Sangick Jeon, The Authority of Supreme Court Precedent, 30 Soc NETWORKS 16, 16 (2008) (arguing that given the judiciary's political weakness and inability to implement its rulings, judicial power is limited by its perceived authority in our governmental system-a fact which puts pressure on the Court to justify its decisions with reference to stable legal standards, such as stare decisis).
102. See, e.g., Brudney & Ditslear, supra note 5, at 30 (finding reliance on Supreme Court precedent in 82.8% of cases studied)
103. Schacter, supra note 8, at 18 (finding reliance on Supreme Court or other precedent in 100% of majority opinions of cases studied).
104. See, e.g., CROSS, supra note 9, at 146; Brudney & Ditslear, supra note 5, at 30
105. Schacter, supra note 8, at 18
106. Zeppos, supra note 9, at 1092-93.
107. * Indicates chi-squared test reveals a significant difference between rates of reliance in Majority and Dissenting Opinions at p < .05. (For Text/Plain Meaning p = .015; for Other Statutes p = .024; for Common Law Precedent p = .018; and for Whole Act Rule p = .016).
108. ** Indicates chi-squared test reveals a significant difference between rates of reliance in Majority and Dissenting Opinions at p < .01. (For Dictionary Rule p = .oo3 and for Intent p = .005).
109. Percentages reported in this column for Practical Consequences, Legislative History, and Whole Act Rule include 2-3 part concurring/dissenting or part majority/concurring opinions not listed separately in the Table. The effect of these additional opinions on the percentages reported is minimal, at 1%.
110. Percentages reported in this column for Text or Plain Meaning, Dictionary Rule, Agency Deference, Supreme Court Precedent, Practical Consequences, Legislative History, and Whole Act Rule include 2-3 part concurring/dissenting or part majority/concurring opinions not listed separately in the Table. The effect of these additional opinions on the percentages reported is minimal (less than 1%).
111. The canon is named after a famous Sherlock Holmes story, Silver Blaze, in which the fact that the dog did not bark while a racehorse was being stolen led the detective to deduce that the thief was someone the dog knew.
112. See ARTHUR CONAN DOYLE, Silver Blaze, in I SHERLOCK HOLMES: THE COMPLETE NOVELS AND STORIES 455, 475 (Bantam Books 1986) (1892). The canon holds that where the legislative history is silent, courts should not presume that Congress intended to work drastic changes in a law-on the theory that if drastic changes were intended, some legislator would have "barked" and highlighted the change somewhere in the legislative history.
113. See, e.g., Chisom v. Roemer, 501 U.S. 380, 396 (1991) ("We reject that construction because we are convinced that if Congress had such an intent, Congress would have made it explicit in the statute, or at least some of the Members would have identified or mentioned it at some point in the unusually extensive legislative history of the 1982 amendment.")
114. id. 396 n.23 ("Congress' silence in this regard can be likened to the dog that did not bark." (citing DOYLE, supra)).
115. There were 64 cases and 81 opinions that referenced one or more kinds of legislative history. A number of these cases and opinions cited more than one kind of legislative history. The percentages provided above reflect the proportion of cases (out of 64) in which the different kinds of legislative history were cited. The percentage of opinions (out of 81) in which these legislative history types were cited is as follows: 48.1% (39 of 81) of the opinions in which legislative history is cited refer to committee reports, 24.7% (20 of 81) refer to the statute's evolution over time, 12.3% (10 of 81) refer to floor statements or debates, 7.4% (6 of 81) refer to hearings, 6.2% (5 of 81) refer to the absence of legislative history and invoke the "dog that did not bark canon," and 7.4% (6 of 81) reference other types.
116. See Zeppos, supra note 9, at 1093 (reporting that congressional committee reports are cited in 32% of the cases studied, debates in 16.9% of cases studied, and hearing material in 12.6% of the cases studied).
117. See supra Table I.
118. See, e.g., Schacter, supra note 8, at 5
119. Zeppos, supra note 9, at 1117-18.
120. See supra notes 26-30 and accompanying text (referencing the Cross and Zeppos studies).
121. Zeppos, supra note 9, at 1119.
122. CROSS, supra note 9, at 158.
123. Schacter, supra note 8, at 54.
124. See Zeppos, supra note 9, at 1091, 1107-13.
125. See, e.g., Atl. Sounding Co., Inc. v. Townsend, 129 S. Ct. 2561, 2577 (2009) (Alito, J., dissenting) ("When Congress incorporated FELA unaltered into the Jones Act, Congress must have intended to incorporate FELA's limitation on damages as well. We assume that Congress is aware of existing law when it passes legislation.")
126. Rowe v. N.H. Motor Transp. Ass'n, 552 U.S. 364, 370 (2008) ("[W]hen judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its judicial interpretations as well."
127. (quoting Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 85 (2006))).
128. See, e.g., Scalia, supra note 1, at 16 ("[Courts] simply assume ... that the enacting legislature was aware of all those other laws. Well of course that is a fiction...").
129. Nearly 58% (26 of 45) of the majority opinions that referenced the dictionary cited Black's Law Dictionary; 57.1% (28 of 49) of the cases that referenced the dictionary in at least one opinion cited Black's Law Dictionary; and 47.7% (31 of 65) of all opinions that referenced the dictionary cited Black's Law Dictionary. See Appendix B on file with the Hastings Law Journal.
130. The Court relied on one of two dictionaries (or both) in the overwhelming majority of its cases. The first was Black's Law Dictionary, which was referenced in 57.7% of the cases. The second was Webster's, either in the Third New International or New International edition or, on occasion, one of the Collegiate editions. A full 49% (24 of 49) of the cases citing a dictionary referenced Webster's; 42.2% (19 of 45) of the majority opinions citing the dictionary referenced Webster's; and 53.8% (35 of 65) of the opinions that cited a dictionary referenced Webster's. A few of the cases and opinions referenced both Black's Law Dictionary and Webster's New International Dictionary; only 4 of 49 cases and 6 of 65 opinions referencing the dictionary failed to cite either Black's Law Dictionary or Webster's. The American Heritage Dictionary was referenced in 7 cases and opinions; Random House was referenced in 8 cases and 9 opinions; and the Oxford English Dictionary was referenced in 8 cases and opinions. See Appendix B on file with the Hastings Law Journal.
131. See, e.g., WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 275-76 (1994).
132. See, e.g., Brudney & Ditslear, supra note 5, at 13.
133. See, e.g., ESKRIDGE, supra note 86, at 276
134. Brudney & Ditslear, Canons, supra note 5, at 13 ("[S]ubstantive canons reflect judicially-based concerns, grounded in the courts' understanding of how to treat statutory text with reference to judicially perceived constitutional priorities, pre-enactment common law practices, or specific statutorily based policies.").
135. See, e.g., Clark v. Martinez, 543 U.S. 371, 397 (2005) (Thomas, J., dissenting);
136. United States v. Lanier, 520 U.S. 259, 266 (1997).
137. See, e.g., Evans v. United States, 504 U.S. 255, 289 (1992) (Thomas, J., dissenting)
138. McNally v. United States, 483 U.S. 350 (1987)
139. Scarborough v. United States, 431 U.S. 563, 579-80 (1977) (Stewart, J., dissenting). The rule of lenity was relied upon in 12.5% (6 of 48) of the Roberts Court 2005-2008 Term cases that referenced a substantive canon.
140. See Dean v. United States, 129 S. Ct. 1849, 1859 (2009)
141. United States v. Hayes, 129 S. Ct. 1079, 1088-89 (2009);
142. United States v. Santos, 128 S. Ct. 2020, 2024-26 (2008);
143. United States v. Rodriquez, 553 U.S. 377, 404-05 (2008) (Souter, J., dissenting);
144. James v. United States, 550 U.S. 192, 219 (2007)
145. Scheidler v. Nat'l Org. for Women, Inc., 547 U.S. 9, 17-18 (2006).
146. See, e.g., Cherokee Nation v. Leavitt, 543 U.S. 631, 646 (2005)
147. Zadvydas v. Davis, 533 U.S. 678, 696-99 (2001)
148. Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 465-66 (1989). The avoidance canon was relied on in 18.8% (9 of 48) of the Roberts Court cases that referenced a substantive canon.
149. See Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2513 (2009);
150. FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1811 (2009)
151. Hawaii v. Office of Hawaiian Affairs, 129 S. Ct. 1436, 1445 (2009)
152. Bartlett v. Strickland, 129 S. Ct. 1231, 1247 (2009)
153. Boumediene v. Bush, 553 U.S. 723, 787 (2008)
154. Gonzalez v. United States, 553 U.S. 242, 251 (2008)
155. Office of Senator Mark Dayton v. Hanson, 550 U.S. 511, 514 (2007)
156. Gonzales v. Carhart, 550 U.S. 124, 153 (2007)
157. Rapanos v. United States, 547 U.S. 715, 737-38 (2006).
158. See, e.g., Nixon v. Mo. Mun. League, 541 U.S. 125, 138 (2004)
159. BFP v. Resolution Trust Corp., 511 U.S. 531, 544 (1994).
160. Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 365 (2002)
161. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996).
162. McCormick v. United States, 500 U.S. 257, 268 n.6 (1991);
163. City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 388 (1991). Federalism clear-statement rules, including the presumption against preemption of state laws, were referenced in 16.7% (8 of 48) of the Roberts Court cases that employed a substantive canon.
164. See Wyeth v. Levine, 129 S. Ct. 1187, 1194-95 (2009);
165. Altria Group, Inc. v. Good, 129 S. Ct. 538, 543 (2008) (Stevens, J., dissenting)
166. Fla. Dep't of Revenue v. Piccadilly Cafeterias, Inc., 128 S. Ct. 2326, 2337 (2008)
167. Riegel v. Medtronic, Inc., 552 U.S. 312, 334 (2008) (Ginsburg, J., dissenting)
168. Watters v. Wachovia Bank, N.A., 550 U.S. 1, 31 (2007)
169. Rapanos, 547 U.S. at 738;
170. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006);
171. Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 698 (2006).
172. See, e.g., Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 738 (2002).
173. See, e.g., United States v. Burke, 504 U.S. 229, 248 (1992) (Souter, J., concurring in the judgment);
174. United States v. Wells Fargo Bank, 485 U.S. 351, 357 (1988).
175. See, e.g., Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79,83 (2002);
176. Groves v. Ring Screw Works, Ferndale Fastener Div., 498 U.S. 168,173 (1990).
177. See, e.g., Abuelhawa v. United States, 129 S. Ct. 2102, 2107 (2009) ("[The] history [of the Controlled Substances Act] drives home what is already clear in the current statutory text: Congress meant to treat purchasing drugs for personal use more leniently than the felony of distributing drugs, and to narrow the scope of the communications provision to cover only those who facilitate a drug felony....[I]t is impossible to believe that Congress intended 'facilitating' to cause that twelve-fold quantum leap in punishment for simple drug possessors [who use a telephone to facilitate a drug purchase].");
178. Boumediene v. Bush, 553 U.S. 723,735-36 (2008) (holding that the Detainee Treatment Act's grant of "exclusive" jurisdiction to the courts of appeals shows Congress's intent that the courts of appeals have a more limited role in enemy combatant status determinations than a district court has in habeas corpus proceedings);
179. Scheidler v. Nat'l Org. for Women, Inc., 547 U.S. 9, 17-20 (2006) (stating that Congress did not intend for the Hobbs Act to create a freestanding physical violence offense, as evidenced by the fact that the Hobbs Act's predecessor statute explicitly linked the physical violence it prohibited to a plan or purpose to injure commerce through coercion or extortion).
180. See, e.g., Fitzgerald v. Barnstable Sch. Comm., 129 S. Ct. 788,797 (2009) (holding that Title IX does not preclude §1983 actions alleging unconstitutional gender discrimination in schools based, in part, on precedents interpreting Title VI and the fact that Title IX was modeled on Title VI);
181. Flood v. Kuhn, 407 U.S. 258, 284 (1972) (holding that the Sherman Antitrust Act does not apply to baseball, because the Court had previously so held (citing
182. Toolson v. N.Y. Yankees, Inc., 346 U.S. 356 (1953);
183. Fed. Baseball Club v. Nat'l League, 259 U.S. 200 (1922))).
184. See, e.g.. United States ex rel. Eisenstein v. City of New York, 129 S. Ct. 2230, 2234 (2009);
185. Hibbs v. Winn, 542 U.S. 88, 101 (2004);
186. Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 113 (2001);
187. United States v. Alaska, 521 U.S. 1, 59 (1997);
188. 2A NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION § 46.06, at 181-86 (rev. 6th ed. 2000) ("A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant....").
189. See, e.g., Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232 (2007);
190. IBP, Inc. v. Alvarez, 546 U.S. 21, 34 (2005);
191. Comm'r of Internal Revenue v. Lundy, 516 U.S. 235, 249-50 (1996);
192. Gustafson v. Alloyd Co., Inc., 513 U.S. 561,570 (1995).
193. See, e.g., WILLIAM N. ESKRIDGE, JR. ET AL., CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 1066 (4th ed. 2007) (likening the whole act rule's presumption that a word used multiple times in a statute has the same meaning throughout the statute to whole code/other statutes rules dictating that the statute at issue should be construed in light of interpretations already given to other federal statutes using the same language or dealing with the same subject matter-more specifically known as the in pari materia-and modeled or borrowed statutes' rules).
194. See, e.g., Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2352 (2009) ("Price Waterhouse['s] burden-shifting framework is difficult to apply....[so] even if Price Waterhouse was doctrinally sound, the problems associated with its application have eliminated any perceivable benefit to extending its framework to ADEA claims.");
195. Bartlett v. Strickland, 129 S. Ct. 1231, 1244-45 (2009) ("Determining whether a [VRA] §2 claim would lie ... would place courts in the untenable position of predicting many political variables... that even experienced polling analysts and political experts could not assess with certainty, particularly over the long term.");
196. Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158,169 (2007) ("Departing from the common-law practice of applying a single causation for negligence and contributory negligence would have been a peculiar approach for Congress to take ... [because as] a practical matter, it is difficult to reduce damages 'in proportion' to the employee's negligence if the relevance of each party's negligence to the injury is measured by a different standard of causation....[I]t is far simpler for a jury to conduct the apportionment FELA mandates if the jury compares like with like-apples to apples.").
197. Gonzalez v. United States, 553 U.S. 242, 249-50 (2008) ("Giving the attorney control of trial management matters is a practical necessity. 'The adversary process could not function effectively if every tactical decision required client approval.'... For these reasons we conclude that [the statute must be read so] that express consent by counsel suffices to permit magistrate judge to preside over jury selection...."
198. (quoting Taylor v. Illinois, 484 U.S. 400 (1988)));
199. Panetti v. Quarterman, 551 U.S. 930,943 (2007) ("As a result [of an alternative construction], conscientious defense attorneys would be obligated to file unripe (and, in many cases, meritless)... claims....This counterintuitive approach would add to the burden imposed on courts, applicants, and the States, with no clear advantage to any.").
200. See, e.g., Cuomo v. Clearing House Ass'n, L.L.C., 129 S. Ct. 2710, 2717-18 (2009) (finding that everyone acknowledges that the National Bank Act leaves in place some state substantive laws affecting banks, but the Office of the Comptroller of the Currency's regulation says that the State may not enforce its valid non-preempted laws against national banks, and that this is a "bizarre" result);
201. Wyeth v. Levine, 129 S. Ct. 1187, 1230-31 (2009) (Alito, J., dissenting) (criticizing majority's interpretation for creating an incoherent regulatory scheme by allowing state tort law claims based on a hospital's use of a risky IV-injection practice approved by the FDA for drug A, when the FDA continues to allow the practice for more dangerous cancer medications with a greater risk of causing death-thus, rendering the federal regulations inconsistent with state tort law);
202. United States v. Rodriquez, 553 U.S. 377, 383 (2008) (finding that an alternative interpretation would result in the possibility that defendants offending for a second, third, or more times could be sentenced in state court to more than five years for a crime that federal courts had deemed, for purposes of the Armed Career Criminal Act, to have a maximum term of five years).
203. Fed. Express Corp. v. Holowecki, 552 U.S. 389, 419-20 (2008) (Thomas, J., dissenting) ("Today's decision does nothing-absolutely nothing-to solve the problem that under the EEOC's current processes no one can tell, ex ante, whether a particular filing is or is not a charge.");
204. James v. United States, 550 U.S. 192, 215 (2007) (Scalia, J., dissenting) (criticizing the majority's interpretation as "ad hoc" and for failing to provide concrete guidance to lower courts going forward).
205. Kimbrough v. United States, 552 U.S. 85, 94-95 (2007) (finding the disparity between recommended sentences for crack cocaine and powder cocaine means that a major supplier of powder cocaine could receive a shorter sentence than a low-level dealer who buys powder from the supplier and converts it to crack);
206. Watson v. United States, 552 U.S. 74, 84 (2007) (Ginsburg, J., concurring) (finding it "makes scant sense" to distinguish between trading a gun for drugs, which counts as "use" of a firearm, and trading drugs for a gun, which doesn't count as "use" according to majority's opinion).
207. Gross, 129 S. Ct. at 2358-59 (Breyer, J., dissenting) (finding that plaintiffs cannot prove employer's but-for reliance on age in age-discrimination cases, since the employer is in best position to know what he or she was thinking at the time, so the fair and appropriate test is whether plaintiff can show that the forbidden motive played some role in the employer's decision);
208. AT&T Corp. v. Hulteen, 129 S. Ct. 1962, 1977-78 (2009) (Ginsburg, J., dissenting) (noting that the plaintiffs, comprised of female retirees seeking to have their pregnancy leave included in their pension calculations, made "modest claims," which could be satisfied without interrupting the "settled expectations of other workers").
209. United States v. Hayes, 129 S. Ct. 1079, 1087 (2009) ("[Alternative construction] would [render the statute] 'a dead letter' in some two-thirds of the States from the very moment of its enactment.");
210. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 649-50 (2007) (Ginsburg, J., dissenting) (arguing that because salaries often are kept confidential, a victim of Title VII discrimination may not know immediately that she has been discriminated against, and that it is meaningless to give victims the right to sue but then bar recovery if they do not sue immediately, even if they are not initially aware of the discrimination), overruled by statute, Lilly Ledbetter Fair Pay Act of 2009, Pub. L. 111-2,123 Stat. 5 (2009).
211. Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484, 2495 (2009) (finding the school district's interpretation "would produce a rule bordering on the irrational" whereby IDEA would provide a remedy when the school district offers child an inadequate individualized education program, but not in the "more egregious situation" where the school district unreasonably denies a child access to such services altogether);
212. Dean v. United States, 129 S. Ct. 1849, 1859 (2009) (Stevens, J., dissenting) (finding that the majority's construction produces the "strange result" of imposing a substantially harsher penalty for an accidental act caused not by an "evil-meaning mind," but by a clumsy hand, than would be imposed for the intentional act of brandishing a firearm).
213. 20 U.S.C. § 1415(i) (3) (B) (2006).
214. 548 U.S. 291, 293-94 (2006).
215. Id.
216. Id. at 296-97.
217. Id. at 314 (Breyer, J., dissenting).
218. Id.
219. Id. at 315-16 ("In a word, the Act's statutory right to a 'free' and 'appropriate' education may mean little to those who must pay hundreds of dollars to obtain it....Today's result will leave many parents and guardians 'without an expert with the firepower to match the opposition,' a far cry from the level playing field that Congress envisioned." (citation omitted)
220. (quoting Shaffer v. Weast, 546 U.S. 46, 61 (2005))).
221. 129 S. Ct. 1800 (2009).
222. 47 U.S.C. §§ 151-614 (2000).
223. 18 U.S.C. § 1464 (2006);
224. Public Telecommunications Act of 1992, Pub. L. No. 102-356, 16a, 106 Stat. 949,954 (codified at 47 U.S.C. § 303 note (2000)).
225. Fox Television, 129 S. Ct. at 1806-07, 1827 (quoting Pacifica Found., 2 FCC Red. 2698, 2699, ¶13(1987)).
226. Id. at 1808. The first [incident] occurred during the 2002 Billboard Music Awards, when the singer Cher exclaimed, "I've also had critics for the last 40 years saying that I was on my way out every year. Right. So f*** 'em." The second involved a segment of the 2003 Billboard Music Awards, during the presentation of an award by Nicole Richie and Paris Hilton, principals in a Fox television series called "The Simple Life." Ms. Hilton began their interchange by reminding Ms. Richie to "watch the bad language," but Ms. Richie proceeded to ask the audience, "Why do they even call it 'The Simple Life?' Have you ever tried to get cow s*** out of a Prada purse? It's not so f***ing simple." Id.
227. Id. at 1805-06.
228. Id. at 1827 (Stevens, J., dissenting).
229. Id. at 1826-28.
230. 128 S. Ct. 2007 (2008).
231. 5 U.S.C. § 504(a)(l) (2006); 28 U.S.C. § 2412(d)(I)(A) (2006).
232. Richlin Sec. Serv. Co., 128 S. Ct. at 2010.
233. Id. at 2010-11.
234. Id. at 2018.
235. Id. at 2018-19.
236. Id. at 2019.
237. Id.
238. 129 S. Ct. 538(2008).
239. 15 U.S.C. §1334(b) (2006).
240. Altria Grp., 129 S. Ct. at 541 (citing ME. REV. STAT. ANN. tit. 5, §207 (2008)).
241. Id. at 546.
242. 505 U.S. 504,524 (1992).
243. Altria Grp.,129 S. Ct. at 551,554-55.
244. Id. at 555 (quoting Good v. Altria Grp., Inc., 436 F. Supp. 2d 132,142 (Me. 2006)).
245. Id. (quoting FEC v. Wis. Right to Life, Inc., 551 U.S. 449,500 (2007) (Scalia, J., concurring in part and concurring in judgment)) (citing
246. Payne v. Tennessee, 501 U.S. 808,827 (1991)).
247. * Indicates that one-way ANOVA test, using Bonferroni multiple comparison test, reveals a significant difference between rates of reliance by different Justices in the opinions they authored at p < .001. (For Purpose, p =.0004; for Intent, p < .0001; and for Legislative History, p = .0001).
248. See infra Table 3.
249. See, e.g., sources cited supra note 68.
250. See supra Table 2; infra Table 3.
251. See supra Table 2; infra Table 3.
252. See supra Table 2 (reporting that Justice Scalia referenced legislative history in 9.8% of the opinions he authored; statutory purpose in 7.3% of the opinions he authored; and legislative intent in 2.4% of the opinions he authored).
253. See supra Table 2 (reporting that Justice Thomas referenced legislative history in 8.5% of the opinions he authored; statutory purpose in 14.9% of the opinions he authored; and legislative intent in 6.4% of the opinions he authored).
254. See supra Table 2 (reporting that Justice Roberts referenced legislative history in 18.2% of the opinions he authored; statutory purpose in 11.5% of the opinions he authored; and legislative intent in 7.7% of the opinions he authored).
255. See supra Table 2 (reporting that Justice Souter referenced both substantive canons and common law precedent in 14.7% of the opinions he authored, and that Justice Stevens referenced substantive canons in 27.7% of the opinions he authored and common law precedent in 17% of the opinions he authored).
256. See supra Table 2.
257. See supra Table 3.
258. But see Law & Zaring, supra note 6, at 1728-29 (finding no evidence to support a "Scalia effect" diminishing other Justices' use of legislative history).
259. Justice Thomas referenced dictionary definitions in 29.8% of the opinions he authored but referenced legislative history in only 8.5% of those opinions; Justice Alito referenced the dictionary in 28.1% of the cases he authored and legislative history in only 15.6% of the cases; Justice Scalia referenced the dictionary in 22% of the cases he authored and legislative history in only 9.8% of his opinions. See supra Table 2.
260. Justice Stevens invoked legislative history in 38.3% of the opinions he authored but relied on the dictionary in only 11.9% of his opinions; Justice Breyer referenced legislative history in 37.5% of the opinions he authored and the dictionary in only 14.3% of those opinions; Justice Ginsburg referenced legislative history in 36.4% of her opinions and the dictionary in 15.2% of those same opinions; and Justice Souter invoked legislative history in 29.4% of his opinions, while citing the dictionary in 17.7%. See supra Table 2.
261. Justice Roberts referenced the dictionary in only 11.5% of the opinions he authored-the lowest rate of reliance for any Justice, though essentially equal to Justice Stevens's rate of reliance and invoked legislative history in 18.2% of the opinions he authored-more than all of the other landscape-coherence Justices, save Justice Kennedy, but only half as often as most of the statutespecific Justices. See supra Table 2.
262. Justice Kennedy invoked the dictionary in 23.3% of the cases he authored and legislative history in 20%. See supra Table 2.
263. See, e.g., Scalia, supra note 1, at 32;
264. see also Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 YALE L.J. 1750, 1762-64 (2010);
265. Merrill, supra note 4, at 355-61;
266. Schacter, supra note 8, at 5 (calling dictionary references the "benchmark of the new textualism" and contrasting an apparent decline in dictionary citations with an apparent "resurgence" in legislative history use).
267. * Indicates chi-squared test reveals a significant difference between the rates at which the different Justices referenced administrability versus policy constancy practical consequences concerns at p = .001. Not including per curiam opinions, the Justices referenced some sort of practical consequence in 114 of their opinions in statutory cases.
268. See supra Table 4.
269. See supra Table 4.
270. See supra Table 4.
271. * Indicates chi-squared test reveals a significant difference between the rates at which the two camps/groups of Justices referenced administrability versus policy constancy practical consequences concerns at p < .0001. Including per curiam opinions, the Justices referenced some sort of practical consequence in 117 of their opinions in statutory cases.
272. See supra Table 5.
273. The dataset contained only 7 cases and 8 opinions interpreting the Internal Revenue Code; 3 cases and 8 opinions interpreting the IDEA; 6 cases and 8 opinions interpreting antitrust statutes; 2 cases and 5 opinions interpreting the FTCA; 4 cases and 3 opinions interpreting the Bankruptcy Code; 2 cases and 7 opinions interpreting the Federal Communications Act; 2 cases and 4 opinions interpreting the Prison Litigation Reform Act; 3 cases and 7 opinions interpreting the Patent Act; 3 cases and 4 opinions interpreting the False Claims Act; 4 cases and 6 opinions interpreting the AEDPA; and 2 cases and 6 opinions interpreting the FELA.
274. As Tables 6a-d, 7a-d, and 8a-c indicate, the subject areas for which correlation was assessed were: criminal statutes (53 opinions), environmental statutes (24 opinions), jurisdictional statutes (50 opinions), the Federal Arbitration Act (II opinions), discrimination-related statutes (49 opinions), the civil RICO statute (9 opinions), securities statutes (9 opinions), preemption statutes (22 opinions), immigration statutes (13 opinions), and ERISA (10 opinions).
275. See infra Tables 6a, 6b, 6c, and 6d.
276. See infra Table 7a.
277. Of the 53 Roberts Court opinions in the dataset involving the interpretation of a criminal statute, 39.6% referenced other statutes, 26.4% referenced the dictionary, and 17% referenced substantive canons. See infra Tables 7a, 7b, and 7d.
278. Of the 9 Roberts Court opinions in the dataset that involved the interpretation of the civil RICO statute, 33.3% referenced other statutes, 22.2% referenced the dictionary, and 22.2% referenced common law precedent. See infra Tables 7a, 7b, and 7c.
279. Of the 13 Roberts Court opinions in the dataset that involved the interpretation of an immigration statute, 30.8% referenced other statutes, 23.1% referenced the dictionary, and 23.1% referenced common law precedent. See infra Tables 7a, 7b, and 7c.
280. Twenty-two Roberts Court opinions in the dataset involved the interpretation of a preemption statute; of these, 22.7% referenced other statutes and 22.7% referenced substantive canons. 9 opinions from the dataset involved the interpretation of a securities statute; of these, 22.2% referenced other statutes and 22.2% referenced common law precedent. See infra Tables 7a, 7c, and 7d.
281. The Roberts Court's opinions interpreting criminal statutes referenced legislative history at a rate of 30.2%, referenced intent at a rate of 24.5%, and referenced statutory purpose at a rate of 17%. See infra Tables 8a, 8b, and 8c.
282. Of the 24 Roberts Court opinions in the dataset that involved the interpretation of an environmental statute, 20.8% referenced legislative history, 20.8% referenced intent, and 37.5% referenced statutory purpose. See infra Tables 8a, 8b, and 8c.
283. Of the 49 Roberts Court opinions in the dataset that involved the interpretation of a discrimination-related statute, 30.6% referenced legislative history, 22.4% referenced intent, and 20.4% referenced statutory purpose. See infra Tables 8a, 8b, and 8c.
284. Of the 9 Roberts Court opinions in the dataset that involved the interpretation of a securities statute, 33.3% referenced legislative history, 33.3% referenced intent, and 44.4% referenced purpose. See infra Tables 8a, 8b, and 8c.
285. Of the 50 Roberts Court opinions in the dataset that involved the interpretation of a jurisdictional statute, 20% referenced legislative history and 24% referenced statutory purpose. See infra Tables 8a and 8c.
286. Of the 9 Roberts Court opinions in the dataset that involved the interpretation of the civil RICO statute, 22.2% referenced legislative history and 22.2% referenced statutory purpose. See infra Tables 8a and 8c.
287. Of the 22 Roberts Court opinions in the dataset that involved the interpretation of a preemption statute, 31.8% referenced intent and 40.9% referenced statutory purpose. See infra Tables 8b and 8c.
288. Compare Tables 8a-c (opinions interpreting environmental statutes referenced legislative history at a rate of 20.8%, intent at a rate of 20.8%, and statutory purpose at a rate of 37.5%; opinions interpreting discrimination-related statutes referenced legislative history at a rate of 30.6%, intent at a rate of 22.4%, and statutory purpose at a rate of 20.4%) with Tables 7a-d (opinions interpreting environmental statutes referenced other statutes at a rate of 4.2%, dictionary definitions at a rate of 41.7%, common law precedent at a rate of 4.2%, and substantive canons at a rate of 8.3%; opinions interpreting discrimination-related statutes referenced other statutes at a rate of 20.4%, dictionary definitions at a rate of 10.2%, common law precedent at a rate of 6.1%, and substantive canons at a rate of 14.3%).
289. Compare Tables 8a-c (opinions interpreting jurisdictional statutes referenced legislative history at a rate of 20%, intent at a rate of 14%, and statutory purpose at a rate of 24%), with Tables 7a-d (opinions interpreting jurisdictional statutes referenced other statutes at a rate of 22%, dictionary definitions at a rate of 12%, common law precedent at a rate of 6%, and substantive canons at a rate of 8%).
290. Compare Tables 8a-c (opinions interpreting immigration statutes referenced legislative history at a rate of 7.7%, intent at a rate of 7.7%, and statutory purpose at a rate of 30.8%), with Tables 7a-d (opinions interpreting immigration statutes referenced other statutes at a rate of 30.8%, dictionary definitions at a rate of 23.1%, common law precedent at a rate of 23.1%, and substantive canons at a rate of 7.7%).
291. See Tables 8a-c and Tables 7a-d (opinions interpreting criminal statutes referenced legislative history at a rate of 30.2%, intent at a rate of 24.5%, and statutory purpose at a rate of 17%; other statutes were referenced at a rate of 39.6%, dictionary definitions at a rate of 26.4%, common law precedent at a rate of 7.5%, and substantive canons at a rate of 17%).
292. See Tables 8a-c and Tables 7a-d (opinions interpreting preemption statutes referenced legislative history at a rate of 18.2%, intent at a rate of 31.8%, and statutory purpose at a rate of 40.9%; other statutes were referenced at a rate of 22.7%, dictionary definitions at a rate of 9.1%, common law precedent at a rate of 9.1%, and substantive canons at a rate of 22.7%).
293. See Tables 8a-c and Tables 7a-d (opinions interpreting securities statutes referenced legislative history at a rate of 33.3%, intent at a rate of 33.3%, and statutory purpose at a rate of 44.4%; other statutes were referenced at a rate of 22.2%, dictionary definitions at a rate of 11.1%, common law precedent at a rate of 22.2%, and substantive canons at a rate of 11.1%).
294. See Tables 8a-c and Tables 7a-d (opinions interpreting the civil RICO statute referenced legislative history at a rate of 22.2%, intent at a rate of 11.1%, and statutory purpose at a rate of 22.2%; other statutes were referenced at a rate of 33.3%, dictionary definitions at a rate of 22.2%, common law precedent at a rate of 22.2%, and substantive canons at a rate of 11.1%).
295. See, e.g.. Dean v. United States, 129 S. Ct. 1849, 1856-60 (2009) (Stevens, J., dissenting) (making both statute-specific legislative history and design arguments and landscape-focused common law and substantive canon arguments).
296. See Tables 2 and 3 and discussion supra Part II.C.5.
297. 549 U.S. 483 (2007).
298. 48 U.S.C. § 1423a (2006); II GUAM CODE ANN. § 24102 (1998).
299. Limtiaco, 549 U.S. at 485.
300. 48 U.S.C. § 1423a; Limtiaco, 549 U.S. at 485.
301. Limtiaco, 549 U.S. at 485.
302. Id.
303. Id. at 489
304. Id. (quoting BLACK'S LAW DICTIONARY 1721,149 (4th ed. 1951)).
305. Id.
306. Id. at 491 (emphasis added) (citing 15 E. MCQUILUN, LAW OF MUNICIPAL CORPORATIONS § 41: 7, at 422,424-25 (3d ed. rev. 2005)).
307. Id. at 492 (Souter, J., dissenting).
308. Id. at 495.
309. See id. at 495-96.
310. Id. at 496.
311. Id. at 495.
312. See supra Table 2.
313. Id.
314. 547 U.S. 715 (2006) (plurality opinion).
315. 33 U.S.C. §§ 1251-1444 (2006).
316. Rapanos, 547 U.S. at 719-20.
317. Id. at 720-21 (citing 33 U.S.C. § 1362(7)).
318. See 33 U.S.C. § 1344(a).
319. Id. § 1362(7).
320. Rapanos, 547 U.S. at 727-28.
321. Id. at 729.
322. Id. at 731-32.
323. See id.
324. Id. at 732 (alteration in original) (quoting WEBSTER'S NEW INTERNATIONAL DICTIONARY 2882 (2d ed. 1954)).
325. Id. at 733 &n.6. The principal definition of 'stream' likewise includes reference to such permanent, geographically fixed bodies of water: '[a] current or course of water or other fluid, flowing on the earth, as a river, brook, etc.' The other definitions of 'stream' repeatedly emphasize the requirement of continuous flow: '[a] steady flow, as of water, air, gas, or the like'; '[a]nything issuing or moving with continued succession of parts'; '[a] continued current or course; current; drift.'
326. Id. (internal citations omitted).
327. Id. at 734.
328. Id.
329. Id.
330. Id. at 735 (citing 33 U.S.C. § 1362(14) (2006)).
331. 6
332. 223- See id. at 738.
333. Id. (citing FERC v. Mississippi, 456 U.S. 742, 768 n.30 (1982)
334. Hess v. Port Auth. TransHudson Corp., 513 U.S. 30, 44 (1994)).
335. Id. (quoting Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 174(2001)).
336. Id. (emphasis omitted).
337. Id. at 737-38.
338. Id. at 738 (citing BFP v. Resolution Trust Corp., 511 U.S. 531, 544 (1994)
339. Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988)).
340. See id. at 721.
341. Id. (citing David Sunding & David Zilberman, The Economics of Environmental Regulation by Licensing: An Assessment of Recent Changes to the Wetland Permitting Process, 42 NAT. RESOURCES J. 59, 74-76, 81 (2002)).
342. Id. at 719-22.
343. See supra notes 216, 218, 219 and accompanying text.
344. See supra note 228 and accompanying text.
345. See supra note 230 and accompanying text.
346. Id. at 759 (Kennedy, J., concurring in judgment).
347. Rapanos, 547 U.S. at 759 (citing 531 U.S. 159, 167 (2001)).
348. 531 U.S. at 167.
349. Rapanos, 547 U.S. at 759, 767.
350. Id. at 779 (quoting 33 U.S.C. §1251(a) (2006)).
351. Id. at 780.
352. Id. at 786.
353. Id. at 769.
354. Id.
355. Id. at 769-70.
356. Id. at 734 (plurality opinion).
357. 474 U.S. 121 (1985).
358. 247- Rapanos, 547 U.S. at 792 (Stevens, J., dissenting) (alteration in original) (quoting Riverside Bayview, 474 U.S. at 123 (1985)).
359. Id. at 806.
360. Id. at 797.
361. Id. at 794.
362. Id. at 797.
363. Id. at 788.
364. Id. at 800.
365. Id.
366. Id. at 804-05.
367. Id. at 804 (quoting Milwaukee v. Illinois, 451 U.S. 304, 317, 318 (1981)) (internal quotation marks omitted).
368. Id.
369. Id. at 801. The dissent established this latter fact through references to topographical map symbols provided by the Department of the Interior.
370. Id.
371. Id. at 801, 805 (rebutting the plurality's dictionary use regarding the word "stream," and citing the dictionary definition of "adjacent" to rebut the plurality's definition of the word).
372. Scalia, supra note 1, at 17.
373. Barnhart v. Sigmon Coal Co., 534 U.S. 438, 472 (2001) (Stevens, J., dissenting).
374. See Scalia, supra note 1, at 28-29 ("To the honest textualist, all of these preferential rules and presumptions are a lot of trouble....But... there is also the question of where the courts get the authority to impose them.").
375. See, e.g., Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2513 (2009) (explaining that construing the Voting Rights Act (VRA) to allow this utility district to bail out would raise serious constitutional concerns, and that the Court will not interpret a statute in a way that creates constitutional difficulties if there is some other ground upon which to dispose of the case)
376. Bartlett v. Strickland, 129 S. Ct. 1231, 1237 (2009) (explaining that reading §2 of the VRA to require crossover districts would raise serious equal protection concerns by forcing courts to make inquiries based on racial classifications and race-based predictions, and that to the extent there is doubt about whether §2 of the VRA requires crossover districts, the Court must resolve that doubt by avoiding the interpretation that raises serious constitutional concerns)
377. Gonzales v. Carhart, 550 U.S. 124, 153 (2007) ("The canon of constitutional avoidance, finally, extinguishes any lingering doubt as to whether the Act covers the prototypical D&E procedure. '[T]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.'" (
378. quoting Edward J DeBartolo Corp. v. FIa. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988))).
379. See Barnhart, 534 U.S. at 467, 469 ("If we assume that [the two sponsors] correctly understood their work product, the provision is coherent....[T]he Court's cavalier treatment of the explanations of the statute provided... by [the sponsors] is disrespectful, not only to those Senators, but to the entire Senate as well. For... it apparently assumes that the Senators were either dissembling or unable to understand the meaning of the bill that they were sponsoring.").
380. See HENRY M. HART, JR. A ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 1374 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994).
381. See, e.g., Heydon's Case, (1584) 76 Engl. Rep. 637 (describing the "Mischief Rule").
382. See, e.g., Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 62 (2007) (gleaning the Fair Credit Reporting Act's "objective" from its statement of purpose)
383. Burton v. Stewart, 549 U.S. 147, 154 (2007) (identifying "streamlining federal habeas proceedings" as the AEDPA's "goal" based on prior judicial interpretation of the AEDPA
384. (citing Rhines v. Weber, 544 U.S. 269, 277 (2005)))
385. S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370, 380 (2006) (determining the purpose of §401 of the CWA based on statements in the relevant senate committee report)
386. see also Jerome Frank, Words and Music: Some Remarks on Statutory Interpretation, 47 COLUM. L. REV. 1259, 1269-70 (1947);
387. Max Radin, A Short Way with Statutes, 56 HARV. L. REV. 388, 398-99 (1942).
388. See, e.g., ESKRIDGE ET AL., supra note 102, at 690
389. POSNER, supra note 3, at 286-87; Pound, supra note 3, at 381 ("[The interpreter's role is] to find out directly what the law-maker meant by assuming his position, in the surroundings in which he acted, and endeavoring to gather from the mischiefs he had to meet and the remedy by which he sought to meet them, his intention with respect to the particular point in controversy.").
390. See, e.g., William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321, 325 (1990)
391. John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. I, 12-13 (2001).
392. See, e.g., Eskridge, Jr., supra note 32, at 1480
393. Eskridge Jr., supra note 4, at 626; Note, Looking to Statutory Intertext: Toward the Use of the Rabbinic Biblical Interpretive Stance in American Statutory Interpretation, 115 HARV. L. REV. 1456, 1470-71 (2002).
394. An example may help make the differences between these approaches more concrete. In Dada v. Mukasey, the Court confronted an immigration statute that contained a provision granting every alien facing a court order for removal from the country the right to file one motion to reopen his or her removal proceedings. 128 S. Ct. 2307, 2310 (2008). A different provision of the same statute authorized aliens facing removal to request permission to depart the country voluntarily, in lieu of forcible removal, and if the voluntary departure request was granted, the statute required the alien to depart the country within sixty days.
395. Id. The alien in the case requested and was granted voluntary departure.
396. Id. at 2311. He also filed a motion to reopen his removal proceedings based on certain changed factual circumstances, including his marriage to an American citizen.
397. Id. By the time his voluntary departure date arrived, the Board of Immigration Appeals (BIA) had not ruled on his motion to reopen.
398. Id. The alien, accordingly, sought to withdraw his voluntary departure request and to remain in the country pending a decision on his motion to reopen.
399. Id. at 2312. The statutory issue was whether an alien who has requested and received permission to depart voluntarily may withdraw his request and remain in the country in order to obtain a ruling on a motion to reopen his removal proceedings.
400. Id. A purposive interpretive approach would have dictated that the Court must identify the underlying objective of the immigration statute, or at least of the motion to reopen and/or voluntary departure provisions, and that the Court must decide the statutory question in the manner that best complied with the objective the statute was designed to achieve; an intentionalist approach would have directed the Court to attempt to divine how the enacting Congress would have resolved the issue. Yet the majority, composed of statute-specific coherence Justices plus crossover Justice Kennedy, made no mention whatsoever of the enacting Congress's intent and barely mentioned the statute's purpose.
401. See id. at 2318 (including two sentences, in passing, about statute's purpose). Instead, it relied on the practical consequences that would arise from a decision not to permit the alien to withdraw his voluntary departure request.
402. See id at 2317-18 (calling it "untenable" to force aliens to make a "Scylla and Charibdys" choice between the right to file a motion to reopen and the provision requiring voluntary departure within sixty days, noting the practical reality that it often takes longer than the voluntary departure period for a motion to reopen to be decided, and decrying the unjustness of allowing a particular BIA member's backlog to determine whether an alien who has filed for both forms of relief gets to have his motion to reopen reviewed), and on inferences from the statute's structure (the whole act rule) to conclude that the most sensible construction was one that permitted the alien to withdraw his voluntary departure motion.
403. See id. at 2317 (noting that the way to make sense of and give meaning to both the motion to reopen and the voluntary departure provision was to allow the alien to withdraw a request for voluntary departure if necessary to obtain a ruling on his motion to reopen).
404. See Eskridge, Jr. & Frickey, supra note 269, at 325-26, 332-33
405. Bradford C. Mank, Legal Context: Reading Statutes in Light of Prevailing Legal Precedent, 34 ARIZ. ST. L.J. 815, 818-19 (2002)
406. Peter L. Strauss, The Common Law and Statutes, 70 U. COLO. L. REV. 225, 227 (1999).
407. See supra Table 2.
408. See supra Tables 2,3.
409. See supra note 153 and accompanying text.
410. See Scalia, supra note 1, at 3-37.
411. 277- See supra Tables 2, 3.
412. See, e.g., Adrian Vermeule, The Supreme Court, 2008 Term-Foreword: System Effects and the Constitution, 123 HARV. L. REV. 4, 41 (2009) ("The Court routinely splits five to four in cases of political import, with Justice Kennedy as the swing voter.").
413. As explained above, I attempted in this study to assess the correlation between ideology and canon use, but the small sample size of 166 cases and 352 opinions generated numbers for the correlation between ideology and each interpretive tool that were too small from which to reach reliable observations. See supra Table 2. During the 2005-2008 Terms, each Justice authored somewhere between 30 and 48 opinions and most interpretive tools were referenced at a rate of somewhere between 20 and 40%; thus, the number of opinions available to be assessed for correlation between a particular interpretive tool and ideology often was at or below fifteen.
414. Id.
415. See THE FEDERALIST NO. 51, at 347-49 (James Madison) (Jacob E. Cooke, ed., 1961).
416. See THE FEDERALIST No. 73, at 496 (Alexander Hamilton) (Jacob E. Cooke, ed., 1961). It may perhaps be said, that the power of preventing bad laws includes that of preventing good ones; and may be used to the one purpose as well as to the other. But this objection will have little weight... The injury which may possibly be done by defeating a few good laws will be amply compensated by the advantage of preventing a number of bad ones. Id.
417. See THE FEDERALIST NO. 73, at 495 (Alexander Hamilton) (Jacob E. Cooke, ed., 1961). The [secondary] inducement to conferring the [veto] power... upon the executive ... is to increase the chances... against the passing of bad laws, through haste, inadvertence, or design. The oftener a measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or of those missteps which proceed from the contagion of some common passion or interest.
418. Id.
419. See generally Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2312 (2006).
420. See, e.g., Curtis W. Copeland, The Role of the Office of Information and Regulatory Affairs in Federal Rulemaking, 33 FORDHAM URB. L.J. 1257, 1305 & nn.270-71 (2006)
421. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2298 (2001)
422. Robert R.M. Verchick, Toward Normative Rules for Agency Interpretation: Defining Jurisdiction Under the Clean Water Act, 55 ALA. L. REV. 845, 850 (2004).
423. See, e.g., ABNER J. MIKVA & ERIC LANE, AN INTRODUCTION TO STATUTORY INTERPRETATION AND THE LEGISLATIVE PROCESS 4, 46 (1997)
424. Jerry L. Mashaw, Agency-Centered or Court-Centered Administrative Law? A Dialogue With Richard Pierce on Agency Statutory Interpretation, 59 ADMIN. L. REV. 889, 903 (2007)
425. see also Chevron v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984) (requiring courts to defer to reasonable agency interpretations of statutes).
426. See, e.g., RICHARD E. LEVY, THE POWER TO LEGISLATE 57 (2006)
427. Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725, 1727, 1819-20 (1996)
428. Betsy J. Grey, The New Federalism Jurisprudence and National Tort Reform, 59 WASH. & LEE L. REV. 475, 489 (2002)
429. Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231, 1236 (1994)
430. Gillian E. Metzger, Ordinary Administrative Law as Constitutional Common Law, no COLUM. L. REV. 479, 508 n.104 (2010).
431. During the early years of Franklin D. Roosevelt's presidency, the Court struck down several of his most ambitious New Deal statutes on the grounds that they violated the Constitution's separation of powers.
432. See, e.g., United States v. Butler, 297 U.S. Preface 1, 68 (1936) ("[O]ur Constitution prohibits the enforcement of the Agricultural Adjustment Act. The act... is a statutory plan to regulate and control agricultural production, a matter beyond the powers delegated to the federal government.");
433. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 541-42 (1935) (invalidating the National Industrial Recovery Act as an impermissible delegation of legislative power to the executive branch)
434. R.R. Ret. Bd. v. Alton R.R. Co., 295 U.S. 330, 368 (1935) (invalidating the Railroad Retirement Act as exceeding Congress's power to regulate commerce). The rulings prompted FDR to retaliate with his infamous "court- packing" plan.
435. See William E. Leuchtenburg, The Origins of Franklin D. Roosevelt's "Court Packing" Plan, 1966 SUP. CT. REV. 347, 348.
436. Frank H. Easterbrook, Statutes' Domains, 50 U. CHI. L. REV. 533, 540-41 (1983).
437. Id. at 541.
438. Id. at 533-34.
439. Id. at 544.
440. Id.
441. Id.
442. See id. at 543 ("The dominant purpose of some labor laws is to curb what is seen as the excessive power of employers over their workers; the dominant purpose of others is to curb what is seen as the excessive power of unions. What is a court to do when the union invokes one, the employer invokes another, and each asks the court to determine the case by construing the law-that is, by determining how the legislature that passed the law would have resolved this kind of case, had it been put?").
443. See id. at 544 ("My suggestion is that unless the statute plainly hands courts the power to create and revise common law, the domain of the statute should be restricted to cases anticipated by its framers....").
444. One recent empirical study measuring factors that contributed to the Supreme Court's use of legislative history from 1953 to 2006 has begun down this path, finding that the level of ideological alignment between the authoring Justice and the Congress that enacted a statute is a statistically significant predictor of the probability that a given statutory interpretation opinion will reference legislative history. See Law & Zaring, supra note 6.