Turning unambiguous statutory materials into ambiguous statutes: Ordering principles, avoidance, and transparent justification in cases of interpretive choice

Duke Law Journal

Volumn 61, Issue 3, 2011, Pages 583-649

  González, Carlos E ^a  

^a Lewis and Clark Law School   (United States)

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EID: 84455201621     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (198)

1. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006).
2. Individuals with Disabilities Education Act, 20 U.S.C. § 1415(i)(3)(B) (2006).
3. Arlington Cent., 548 U.S. at 304. Arlington Central generated four separate opinions. Justice Alito wrote the majority opinion, which was joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas.
4. Justice Ginsberg filed a separate opinion, which concurred with the result and most of the reasoning of the majority opinion but dissented from the majority's invocation of a clear-statement requirement
5. A lengthy dissent authored by Justice Breyer was joined by Justices Stevens and Souter
6. Justice Souter also submitted a separate one-paragraph dissent
7. This Article will refer to the opinion authored by Justice Breyer as the dissenting opinion
8. The majority opinion also bolstered its argument with application of a clear-statement rule: because Congress passed § 1415 of the IDEA pursuant to its Spending Clause powers, the majority asserted that any condition to state acceptance of federal funds "must be set out 'unambiguously.'".
9. Both Justice Ginsburg's partial concurrence and Justice Breyer's dissent, however, argued that a clear-statement rule was inapplicable
10. Justice Breyer's dissenting opinion acknowledged that a construction permitting recovery of expert-witness fees would not represent the most linguistically natural reading of the statutory text
11. The dissent also argued that the interpretation of IDEA favored by the majority would discourage parents from enforcing their children's IDEA rights and would thereby undermine the statutory purpose of promoting free public education for disabled children
12. H.R. REP. NO. 99-687, at 5 (1986) (Conf. Rep.). In addition to the conference committee's language, the dissent also pointed to several other indicators of legislative intent to permit expert-witness fee shifting. See infra text accompanying notes 91-94.
13. See Adrian Vermeule, Interpretive Choice, 75 N.Y.U. L. REV. 74, 76 (2000) (defining interpretive choice as "the selection of one interpretive doctrine, from a group of candidate doctrines, in the service of a goal specified by a higher-level theory of interpretation").
14. Another example involving interpretive choice between clear text and clear, diametrically opposed legislative intent is an issue that has been litigated in federal courts
15. See Adam N. Steinman, "Less" Is "More"?: Textualism, Intentionalism, and a Better Solution to the Class Action Fairness Act's Appellate Deadline Riddle, 92 IOWA L. REV. 1183, 1187-88 (2007).
16. The issue arises out of a section of the Class Action Fairness Act of 2005 (CAFA), 28 U.S.C. §§ 1332(d), 1453 (2006), which grants federal appellate courts the uncommon power to hear immediate appeals of federal district court orders regarding remand of class actions to state courts.
17. Unambiguous CAFA statutory text creates a seven-day waiting period before a litigant may apply for appellate review
18. But unambiguous evidence of legislative intent-including a key committee report-indicates that Congress intended to create a seven-day limitation period for the filing of applications for appellate review
19. Thus, what should a court do when statutory text suggests one meaning but statutory purpose would be frustrated by application of that textual meaning? Compare Caminetti v. United States, 242 U.S. 470 (1917) (applying a broad, literal meaning deduced from the statutory text over a more limited meaning derived from the statutory purpose), with Church of the Holy Trinity v. United States, 143 U.S. 457 (1892) (favoring a limited statutory purpose over a broader literal meaning based on statutory text). Should courts interpret statutory terms statically, such that their meaning is frozen at the time of enactment, or dynamically, such that their meaning shifts over time? Compare People ex rel. Fyfe v. Barnett, 150 N.E. 290, 292 (Ill. 1925) (interpreting a statute statically to read the term "electors" consistently with its meaning at the time of the statute's passage, despite a conflict with its contemporary meaning), with Commonwealth v. Maxwell, 114 A. 825, 829 (Pa. 1921) (interpreting a statute dynamically to read the term "electors" consistently with its contemporary meaning, despite a conflict with its meaning at the time of the statute's passage).
20. For example, as Professor Lawrence Solan emphasizes, courts operating under a textualist rubric may choose a plain-meaning approach, which he terms a "definitional" or "ordinary" meaning approach
21. Lawrence M. Solan, The New Textualists' New Text, 38 LOY. L.A. L. REV. 2027, 2031-39 (2005).
22. See WILLIAM N. ESKRIDGE, JR., PHILIP P. FRICKEY & ELIZABETH GARRETT, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 706-07 (4th ed. 2007) (discussing actual legislative intent and imaginatively reconstructed legislative intent).
23. William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 630 (1990) (noting that courts using intentionalist interpretation sometimes seek evidence of actual legislative intent and other times "'reconstruct' the answer the enacting Congress would have given if the interpretive issue had been posed directly").
24. For a paradigmatic example of imaginative reconstruction, see INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). In Cardoza-Fonseca, the Court drew on various indicia of legislative intent to gauge what Congress would have intended if it had contemplated the narrow issue before the Court.
25. In contrast, Arlington Central involved direct evidence of congressional intent on the narrow issue before the Court
26. See, e.g., Duncan v. Walker, 533 U.S. 167, 174 (2001) (citing the canon against surplusage, which holds that courts must "give effect, if possible, to every clause and word of a statute").
27. See, e.g., Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001) (stating that the canon "requiring a court to give effect to each word 'if possible' is sometimes offset by the canon that permits a court to reject words 'as surplusage' if 'inadvertently inserted or if repugnant to the rest of the statute'" (quoting KARL LLEWELLYN, THE COMMON LAW TRADITION 525 (1960))).
28. W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 112 (1991) (Stevens, J., dissenting) ("In recent years the Court has vacillated between a purely literal approach to the task of statutory interpretation and an approach that seeks guidance from historical context, legislative history, and prior cases identifying the purpose that motivated the legislation.").
29. Frank B. Cross, The Significance of Statutory Interpretive Methodologies, 82 NOTRE DAME L. REV. 1971, 2001 (2007) (concluding that the Supreme Court is "quite pluralist in its methods of statutory interpretation").
30. Dodd v. United States, 545 U.S. 353, 359 (2005) (alteration in original) (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, 530 U.S. 1, 6 (2000)) (internal quotation marks omitted); see also infra note 63.
31. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)) (internal quotation mark omitted); see also infra note 64.
32. For example, although courts sometimes enunciate the principle that statutory purpose may trump the plain meaning of statutory text, courts also occasionally state that statutory text controls even if it would frustrate statutory purpose. Compare Bob Jones Univ. v. United States, 461 U.S. 574, 586 (1983) ("The general words used in the clause..., taken by themselves, and literally construed, without regard to the object in view,.... in many cases... would defeat the object which the Legislature intended to accomplish. And it is well settled that, in interpreting a statute, the court will not look merely to a particular clause in which general words may be used, but will take in connection with it the whole statute... and the objects and policy of the law." (first and fourth omissions in original) (quoting Brown v. Duchesne, 60 U.S. (19 How.) 183, 194 (1857)) (internal quotation mark omitted)), and United States v. Am. Trucking Ass'ns, 310 U.S. 534, 543 (1940) ("[E]ven when the plain meaning did not produce absurd results but merely an unreasonable one 'plainly at variance with the policy of the legislation as a whole' this Court has followed that purpose, rather than the literal words." (quoting Ozawa v. United States, 260 U.S. 178, 194 (1922))), with Casey, 499 U.S. at 98 (rejecting the argument that a statute should be construed in accordance with its statutory purpose rather than with the literal meaning of its text).
33. The law of interpretation encompasses both plain-meaning and ordinary-meaning textualism, and the Supreme Court has used both at different times, or even in different opinions in the same case
34. For example, federal courts may choose between different versions of the same canon of construction, such as the rule of lenity. Specifically, the majority opinion in Muscarello v. United States, 524 U.S. 125 (1998), cited a narrow version of the rule of lenity applicable only if a court "can make 'no more than a guess as to what Congress intended,'".
35. Similarly, federal courts may choose from at least three different versions of the avoidance canon
36. See Gilbert Lee, Comment, How Many Avoidance Canons Are There After Clark v. Martinez?, 10 U. PA. J. CONST. L. 193, 202-20 (2007) (describing the serious-constitutional-doubts, clearaffirmative-intention, and lowest-common-denominator canons of avoidance).
37. Karl N. Llewellyn, Remarks on the Theory of Appellate Decisions and the Rules or Canons About How Statutes Are To Be Construed, 3 VAND. L. REV. 395 (1950).
38. A recent, thoughtful meditation on judicial discretion lists Professor Ronald Dworkin, Justice Benjamin Cardozo, and Professor Ahron Barak among the "countless" authors of works on "discretion in the judicial process.".
39. A. David Pardo, Judicial Discretion in Talmudic Times and the Modern Era, 7 CARDOZO PUB. L. POL'Y & ETHICS J. 429, 430 n.4 (2009).
40. See, e.g., Einer Elhauge, Preference-Estimating Statutory Default Rules, 102 COLUM. L. REV. 2027, 2034 (2002) (arguing that courts should respond to statutory indeterminacy by adopting interpretations that are consistent with the present society's "enactable political preferences" rather than the preferences of the enacting Congress).
41. Amanda Frost, Certifying Questions to Congress, 101 NW. U. L. REV. 1, 9-23 (2007) (discussing statutory indeterminacy and arguing that courts should be permitted to refer ambiguous statutory-interpretation issues back to Congress).
42. John F. Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2408 (2003) (discussing how textualist judges should exercise discretion when facing ambiguous statutory texts).
43. Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 HARV. L. REV. 2085, 2086 (2002) (proposing a statutory code of permissible principles of interpretation in response to the "inevitable ambiguities" of statutes).
44. The final contours of statutes with ambiguous text, for example, will be drawn by an inescapable exercise of judicial discretion
45. See, e.g., WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 41-47 (1994) (arguing that textualist principles do not limit judicial discretion because they cannot always clarify ambiguous statutory provisions).
46. John F. Manning, Deriving Rules of Statutory Interpretation from the Constitution, 101 COLUM. L. REV. 1648, 1655 (2001) ("Ambiguous language necessarily vests judges with some degree of policymaking discretion....").
47. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 297 (2006).
48. See Carlos E. González, Reinterpreting Statutory Interpretation, 74 N.C. L. REV. 585, 594-624 (1996) (reviewing the textualist, intentionalist, purposive, and dynamic interpretive approaches).
49. John F. Manning, Textualism and Legislative Intent, 91 VA. L. REV. 419, 419-20 (2005) (naming textualism and intentionalism as the most frequently used interpretive methodologies).
50. On purposive interpretation, see AHARON BARAK, PURPOSIVE INTERPRETATION IN LAW 83-304 (2005)
51. WILLIAM D. POPKIN, STATUTES IN COURT: THE HISTORY AND THEORY OF STATUTORY INTERPRETATION 115-49 (1999).
52. Aharon Barak, Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy, 116 HARV. L. REV. 16, 66-67 (2002).
53. For arguments that pragmatic- or practical-reasoning approaches should perhaps be separate interpretive approaches, see, for example, RICHARD A. POSNER, HOW JUDGES THINK 230-65 (2008).
54. William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321, 353-62 (1990).
55. Daniel A. Farber, Do Theories of Statutory Interpretation Matter?: A Case Study, 94 NW. U. L. REV. 1409, 1414-16 (2000).
56. See also Caleb Nelson, What Is Textualism?, 91 VA. L. REV. 347, 416-17 (2005) (arguing that textualism is subtle rather than simplistic and, in the end, is not that different from an intentionalist approach).
57. Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-15 (2001) (first alteration in original) (quoting 2A NORMAN J. SINGER, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION § 47.17 (5th ed. 1992)) (internal quotation marks omitted) (employing the ejusdem generis canon of construction).
58. F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004).
59. The scope of this body of injunctive interpretive principles is so vast, varied, and complex that American law schools increasingly offer courses devoted substantially or entirely to judicial interpretation of statutes
60. Ethan J. Leib, Adding Legislation Courses to the First-Year Curriculum, 58 J. LEGAL EDUC. 166, 168 n.9 (2008).
61. Peter J. Smith, Textualism and Jurisdiction, 108 COLUM. L. REV. 1883, 1904 (2008).
62. Perhaps in response to this phenomenon, some scholars have called for a systematized code, a restatement of statutory interpretation, or a stare decisis approach to rules of interpretation
63. See, e.g., Sydney Foster, Should Courts Give Stare Decisis Effect to Statutory Interpretation Methodology?, 96 GEO. L.J. 1863, 1867 (2008) (supporting the application of stare decisis to principles of statutory interpretation).
64. Gary E. O'Connor, Restatement (First) of Statutory Interpretation, 7 N.Y.U. J. LEGIS. & PUB. POL'Y 333, 334 (2004) (arguing for the creation of a restatement of statutory-interpretation principles).
65. See, e.g., Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ., 550 U.S. 81, 122 (2007) (Scalia, J., dissenting) ("The only sure indication of what Congress intended is what Congress enacted; and even if there is a difference between the two, the rule of law demands that the latter prevail."); Chisom v. Roemer, 501 U.S. 380, 404 (1991) (Scalia, J., dissenting) (arguing that the Supreme Court has "adopted a regular method for interpreting the meaning of language in a statute" that embraces textualist principles and rejects reliance on legislative history).
66. ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 29-37 (1997)
67. See also, e.g., Zedner v. United States, 547 U.S. 489, 509-11 (2006) (Scalia, J., concurring) (objecting to the Court's use of the legislative record to corroborate its interpretation that was based on statutory text alone); Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 76 (2004) (Scalia, J., dissenting) (arguing that the Court should not favor legislative intent over the enacted statutory text).
68. 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, 280 (1990) (stating that the practice of referring to a record of legislative history "can be traced back at least a century").
69. Patricia M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 IOWA L. REV. 195, 206-13 (1983) (tracing the use of legislative history in Supreme Court decisions).
70. See infra text accompanying note 63
71. See infra text accompanying note 64
72. Indeed, eight Supreme Court Justices joined an opinion repudiating Justice Scalia's entreaties to avoid using legislative history. Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 610-12 n.4 (1991). Moreover, even the Roberts Court, which features several textualist-leaning Justices, continues to refer to legislative history regularly when interpreting statutes.
73. See 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, 222-23 (2006) (finding that the Supreme Court's reliance on legislative history persists, although it is less frequent than during the Burger Court era, and concluding that nearly 50 percent of the decline is attributable to Justices Scalia and Thomas).
74. See Carlos E. González, The Logic of Legal Conflict: The Perplexing Combination of Formalism and Anti-Formalism in Adjudication of Conflicting Legal Norms, 80 OR. L. REV. 447, 533 (2001) (illustrating the hierarchy of legal norms graphically).
75. U.S. CONST. art. VI, cl. 2; Maryland v. Louisiana, 451 U.S. 725, 746 (1981).
76. U.S. CONST. art. I, § 8, cl. 3.
77. See Rules of Decision Act, 28 U.S.C. § 1652 (2006) (providing that state law applies "except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide"); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) ("Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case [based on diversity of citizenship] is the law of the state.").
78. See Gonzales v. Raich, 545 U.S. 1, 16-22 (2005) (reviewing the Commerce Clause doctrine and reaffirming that, under the Commerce Clause, Congress may regulate activities that have a substantial effect on interstate commerce in the aggregate); United States v. Darby, 312 U.S. 100, 118-27 (1941) (holding that, under the Commerce Clause, Congress may regulate employment conditions such as wages and hours when they affect interstate commerce).
79. See Estate of Thornton v. Caldor, 472 U.S. 703, 709-11 (1985) (holding that a state law prohibiting employers from requiring employees to work on the Sabbath violated the Establishment Clause because it favored or advanced religion over other interests); Lemon v. Kurtzman, 403 U.S. 602, 612-14 (1971) (holding that state laws providing for the funding of secular subjects in religious schools violate the Establishment Clause).
80. Estate of Thornton, 472 U.S. at 710-11.
81. The lower federal court cases that deal with IDEA § 1415 and the shifting of expertwitness fees exemplify this phenomenon. See infra text accompanying notes 72-99.
82. See infra text accompanying notes 95-111
83. Dodd v. United States, 545 U.S. 353, 359 (2005); see also Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004) ("It is well established that 'when the statute's language is plain, the sole function of the courts-at least where the disposition required by the text is not absurd-is to enforce it according to its terms.'" (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, 530 U.S. 1, 6 (2000))); Hartford Underwriters, 530 U.S. at 6 (repeating the same quotation from United States v. Ron Pair Enterprises, Inc., 489 U.S. 235 (1989)); Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999) ("As in any case of statutory construction, our analysis begins with 'the language of the statute.' And where the statutory language provides a clear answer, it ends there as well." (citation omitted) (quoting Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992))); Estate of Cowart, 505 U.S. at 475 ("In a statutory construction case, the beginning point must be the language of the statute, and when a statute speaks with clarity to an issue judicial inquiry into the statute's meaning, in all but the most extraordinary circumstance, is finished."); Caminetti v. United States, 242 U.S. 470, 485 (1917) ("It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain... the sole function of the courts is to enforce it according to its terms.").
84. Ron Pair Enters., Inc., 489 U.S. at 242 (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)) (internal quotation mark omitted); see also Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ., 550 U.S. 81, 104-05 (2007) (Stevens, J., concurring) ("[I]n rare cases the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters, and those intentions must be controlling."); Pa. Dep't of Pub. Welfare v. Davenport, 495 U.S. 552, 565 (1990) (Blackmun, J., dissenting) ("The strict language of the Bankruptcy Code does not control, even if the statutory language has a 'plain' meaning, if the application of that language 'will produce a result demonstrably at odds with the intention of its drafters.'" (quoting Ron Pair Enters., Inc., 489 U.S. at 242)); Griffin, 458 U.S. at 571 ("Nevertheless, in rare cases the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters, and those intentions must be controlling."); Lionberger v. Rouse, 76 U.S. (9. Wall.) 468, 475 (1869) ("It is a universal rule in the exposition of statutes that the intent of the law, if it can be clearly ascertained, shall prevail over the letter, and this is especially true where the precise words, if construed in their ordinary sense, would lead to manifest injustice."); United States v. Kirby, 74 U.S. (7 Wall.) 482, 486-87 (1868) ("General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language...."); United States v. Palmer, 16 U.S. (3 Wheat.) 610, 631 (1818) (stating that "general words must not only be limited to cases within the jurisdiction of the state, but also to those objects to which the legislature intended to apply them").
85. Nor does the frequency of use of different injunctive principles reveal any sort of hierarchy of injunctive principles within the law of interpretation. The more frequent use of some injunctive principles could signal that those principles are simply more popular with judges. If that is the case, then simply the personal preferences of judges for some injunctive interpretive principles over others-and not any true ordering principles within the law of interpretation-is at work. Greater frequency of use could also signal that courts tend to apply some injunctive principles in a predictable sequence, and consequently that they apply the first principle in the sequence with greater frequency. For example, it may be that some courts apply textualism as a first method and only resort to intentionalist, purposive, or dynamic methods if textualism produces an unsatisfactory result. So long as textualism often produces satisfactory results, this sequential formula would result in courts' relying on textualism more than intentionalism or dynamism. Nothing in this practice, however, would signal any hierarchic superiority of textualism over other competing injunctive principles. Whatever the greater frequency with which some injunctive principles are used, that frequency does not provide ordering principles that resolve the problem in Arlington Central and discussed in this Article.
86. Courts using textualist methods sometimes disagree on the meaning of statutory text. See, e.g., Muscarello v. United States, 524 U.S. 125, 126-27, 139 (1998) (interpreting the word "carries" in a sentencing statute in different text-based ways).
87. Interpretive choices among different textualist injunctive principles, however, would be possible. See, e.g., Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 697-98, 702-03 (1995) (rejecting the lowers court's usage of noscitur sociis and instead employing the canon against surplusage).
88. Compare the ambiguity of the IDEA in Arlington Central with my hypothetical statute regarding work on the Sabbath
89. In cases involving a conflict between the Commerce Clause and a First Amendment protection, an unimpeachable ordering principle dictates that the latter trumps the former. Any ambiguity in the case would stem from uncertainty about the contours of the Commerce Clause or the First Amendment. The question would not be, "Does the Commerce Clause trump the First Amendment, or vice versa?" An ordering principle unequivocally answers this question. Instead, the question would be, "Does the First Amendment offer protection against laws prohibiting private employers from requiring work on the Sabbath?" In Arlington Central, the ambiguity stemmed from the law of interpretation's lack of an ordering principle. Should statutory text trump legislative intent, or vice versa? The law of interpretation left the outcome uncertain.
90. Other areas of law furnish ordering principles and, therefore, limit judicial discretion to a single plane. Thus, courts have no discretion to determine whether First Amendment protections or Commerce Clause legislative powers are superior. Because an ordering principle exists, courts have discretion only on a single plane: defining the meanings and scopes of the First Amendment and Commerce Clause or, in other words, determining whether an exercise of the Commerce Clause power stands in conflict with any First Amendment rights.
91. See infra text accompanying notes 95-114
92. See infra text accompanying notes 115-26
93. Before the Supreme Court's June 2006 decision in Arlington Central, forty-six cases available in the Westlaw database considered whether prevailing parties may recover expertwitness fees under IDEA § 1415. The circuit courts had decided six cases on the issue, and the district courts had decided forty, twenty-two of which were published in reporters and eighteen of which were unpublished but available in the Westlaw database. For a list of these cases, see infra Appendix.
94. Four of the six circuit court cases explicitly discussed whether statutory text or legislative intent should prevail. See Goldring v. District of Columbia, 416 F.3d 70, 73-82 (D.C. Cir. 2005) (rejecting reliance on legislative history when interpreting IDEA § 1415); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332, 335-40 (2d Cir. 2005), vacated, 548 U.S. 291 (2006) (noting that although other courts had relied on the text of IDEA § 1415 alone, the legislative history should be relevant to an interpretation of the statute); T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469, 481-82 (7th Cir. 2003) (examining the legislative history of IDEA § 1415 but ultimately relying on the statutory text alone to reach a decision); Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1032-33 (8th Cir. 2003) (finding that because the text of IDEA § 1415 is not ambiguous, there was no need to look to its legislative history). Two circuit court cases did not discuss the text-versus-intent issue. In Arons v. New Jersey State Board of Education, 842 F.2d 58 (3d Cir. 1988), the Third Circuit determined that fees charged by a lay advocate are not recoverable, but the court noted in dicta and without analysis that fees for anything qualifying as expert-witness work could be recovered.
95. Though Arons offered no analysis of expert-witness fee shifting under IDEA § 1415, later courts cited Arons for the proposition that the Third Circuit had interpreted the IDEA to permit expert-witness fee shifting. E.g., Murphy, 402 F.3d at 334; P.G. v. Brick Twp. Bd. of Educ., 124 F. Supp. 2d 251, 267 (D.N.J. 2000). In Missouri Department of Elementary & Secondary Education v. Springfield R-12 School District, 358 F.3d 992 (8th Cir. 2004), the Eighth Circuit offered no analysis of the text-versus-intent issue and merely cited circuit precedent establishing that expert-witness fees are not recoverable.
96. See infra text accompanying notes 115-26
97. Goldring v. District of Columbia, 416 F.3d 70 (D.C. Cir. 2005).
98. Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022 (8th Cir. 2003).
99. Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005), vacated, 548 U.S. 291 (2006).
100. See, e.g., In re Waugh, 109 F.3d 489, 493 (8th Cir. 1997) (holding that the intent of Congress must trump the literal meaning of the statutory text at issue and citing Ron Pair Enterprises, Inc., for the proposition that "[t]he plain meaning of legislation should be conclusive, except in the 'rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters'" (alterations in original) (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989))); Mo. Dep't of Revenue v. L.J. O'Neill Shoe Co., 64 F.3d 1146, 1150 (8th Cir. 1995) (citing the same proposition from Ron Pair Enterprises); Minnesota v. Hoffman, 543 F.2d 1198, 1202 (8th Cir. 1976) ("[A] statute will not be read literally if such a reading leads to a result that conflicts with Congress' intent."); Derengowski v. United States, 404 F.2d 778, 780 (8th Cir. 1968) ("The maxim of strict construction may not be utilized to defeat the clear intent of a statute, nor to encompass within its meaning something obviously omitted from its terms.").
101. In re Kolich, 328 F.3d 406, 409 (8th Cir. 2003) (citation omitted). In In re Kolich, 328 F.3d 406 (8th Cir. 2003), the Eighth Circuit acknowledged that other courts, in interpreting a particular section of the Bankruptcy Code, had refused to "apply the [statutory-text] formula literally" because literal application "would [have] produce[d] an outcome at odds with the purpose of Congress.".
102. Nevertheless, the Eighth Circuit found that literal application of the statutory clause in question would not conflict with legislative intent
103. Neosho R-V Sch. Dist., 315 F.3d at 1035 (Pratt, J., dissenting).
104. Murphy, 402 F.3d at 335-40.
105. Before the 2005 Murphy opinion, the Second Circuit had decided two cases in which it endorsed an intent-over-text principle. See Tyler v. Douglas, 280 F.3d 116, 123 (2d Cir. 2001) ("Although a statute's plain language is generally dispositive, it sometimes will yield when evidence of legislative history is so strong to the contrary that giving a literal reading to the statutory language will result in defeating Congress' purpose in enacting it." (quoting Greene v. United States, 79 F.3d 1348, 1356 (2d Cir. 1996))); United States v. Arnold, 126 F.3d 82, 89 (2d Cir. 1997) ("A statute should not be literally applied if it results in an interpretation clearly at odds with the intent of the drafters."). After the Murphy opinion, Second Circuit cases continued to recognize the intent-over-text principle. See United States v. Whitley, 529 F.3d 150, 156 (2d Cir. 2008) ("We acknowledge that where the literal meaning of a statute yields an illogical result or one manifestly not intended by the legislature, departure from strict adherence to statutory text may be warranted."); Goldman v. Cohen, 445 F.3d 152, 155 (2d Cir. 2006) ("The plain meaning of legislation should be conclusive, except in the rare cases in which the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters." (quoting Ron Pair Enters., Inc., 489 U.S. at 242) (internal quotation marks omitted)).
106. First, the Murphy court believed that dicta in the Supreme Court case of West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83 (1991), was consistent with its analysis of IDEA § 1415's legislative history. Murphy, 402 F.3d at 336-37. Second, the Murphy court believed that congressional inaction following the Casey decision suggested that the Casey dicta had been correct.
107. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006).
108. The majority found that the text of the IDEA provision on cost shifting-as well as other statutory provisions that define "costs" and previous cases defining "costs" in other contexts-supported this construction of the IDEA
109. In addition, the majority argued that under the clear-statement rule of Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981), because the IDEA was passed pursuant to Congress's Spending Clause power, the IDEA could not be read as providing states with clear notice that they would have to pay prevailing parties' expert-witness fees in IDEA cases. Arlington Cent., 548 U.S. at 295-96. In other words, the Pennhurst principle provides an additional reason to favor statutory text over contrary legislative intent that might not be present in statutes that are not passed pursuant to Congress's Spending Clause powers.
110. The majority also held that when the Court is interpreting legislation passed pursuant to the Spending Clause, it has additional reason to prefer clear text over contrary legislative intent. Specifically, Justice Alito noted that the majority "[could]not say that the legislative history on which [the] respondents [were] rely[ing was] sufficient to provide the requisite fair notice" of the cost to states.
111. H.R. REP. NO. 99-687, at 5 (1986) (Conf. Rep.).
112. Arlington Cent., 548 U.S. at 309-13 (Breyer, J., dissenting). In essence, the dissent argued that the record of legislative history suggested that the House, the Senate, and the conference committee had all intended to permit the shifting of expert-witness fees, but that the conference had adopted clumsy language that failed to express that intent unequivocally. On the Senate side, a bipartisan compromise produced language that would have allowed courts to award "a reasonable attorney's fee in addition to the costs to a parent" who prevailed in an IDEA action. S. REP. NO. 99-112, pt. 2, at 15 (1985). On the floor of the Senate, Senator Lowell Weicker, Jr., explained that this language reflected the legislature's "intent that such awards [would] include, at the discretion of the court, reasonable attorney's fees, [and] necessary expert witness fees." 131 CONG. REC. 21,390 (1985) (statement of Sen. Lowell Weicker, Jr.). The Arlington Central dissent argued that "[t]he House version of the bill also reflected an intention to authorize recovery of expert costs." Arlington Cent., 548 U.S. at 310 (Breyer, J., dissenting). The House Committee on Education and Labor reported a version of the bill that would have permitted courts to "award reasonable attorneys' fees, costs and expenses." H.R. REP. NO. 99-296, at 1, 5 (1985) (internal quotation marks omitted). The House report stated the following: "The phrase 'expenses and costs' includes expenses of expert witnesses.".
113. The conference committee reconciled the difference in the Senate and House versions of the costshifting provision by adopting an amendment providing that "the court, in its discretion, may award reasonable attorneys' fees as part of the costs." H.R. REP. NO. 99-687, at 5 (internal quotation marks omitted). The conference committee's report explained that the conferees intended for "the term 'attorneys' fees as part of the costs' [to] include reasonable expenses and fees of expert witnesses.".
114. Arlington Cent., 548 U.S. at 313 (Breyer, J., dissenting). Justice Breyer also bolstered his evidence of legislative intent with the argument that adoption of the interpretation advanced by the majority would undermine the basic purpose of the IDEA.
115. Arguably, the dissent engaged in what Dean Roscoe Pound termed "spurious interpretation.".
116. See Roscoe Pound, Spurious Interpretation, 7 COLUM. L. REV. 379, 382 (1907) ("[T]he object of spurious interpretation is to make, unmake, or remake, and not merely discover [the meaning of statutory text].").
117. The dissent stated that it could "find no good reason... to interpret the language of [the] statute as meaning the precise opposite of what Congress told us it intended." Arlington Cent., 548 U.S. at 309 (Breyer, J., dissenting). This statement suggests that the dissent understood that the law of interpretation does not require courts to apply the most linguistically natural reading of a statutory text over contrary legislative intent.
118. See United States v. Campos-Serrano, 404 U.S. 293, 298 (1971) ("If an absolutely literal reading of a statutory provision is irreconcilably at war with the clear congressional purpose, a less literal construction must be considered."); see also Johnson v. United States, 529 U.S. 694, 706-07 & n.9 (2000) (adopting an interpretation that departed from the most natural or ordinary meaning of the statutory text, in part because the ordinary meaning would have contravened "clear congressional policy"); 73 AM. JUR. 2D Statutes § 125 (2001) ("In construing a statute, the uncommon sense of a term may be relied on... when the realization of clear congressional policy is in tension with the result that customary interpretive rules would deliver. Where it is evident that some other meaning was intended, and the application of the commonly accepted meaning would operate to defeat the purpose of the statute and the intent of the legislature, a departure from the usual or natural meaning of the words in a statute may be deemed proper. Indeed, it is an old and well-established maxim that words ought to be more subservient to the intent, and not the intent to the words. Moreover, it is a general rule that the manifest intent of the legislature will prevail over the literal import of the words.").
119. 2A NORMAN J. SINGER & J.D. SHAMBIE SINGER, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION § 46:7 (7th ed. 2007) ("Although many expressions favoring literal interpretation may be found in caselaw, it is clear that if the literal import of the text of an act is inconsistent with the legislative meaning or intent... the words of the statute will be construed to agree with the intention of the legislature.").
120. In other words, as the dissent understood the law of interpretation, unambiguous evidence of legislative intent trumps the most natural reading of a statutory text, at least when the text will permit a meaning consistent with the legislative intent
121. This approach strongly suggests that the dissent understood the law of interpretation in a different fashion from the Arlington Central majority and the panels of circuit judges in Goldring, Neosho, and Murphy. Those judges framed the central question as whether the law of interpretation grants clear text a trump over clear legislative intent, or vice versa. The Arlington Central dissent, by contrast, implied that it understood the law of interpretation as obligating courts to ask a preliminary question: Can statutory text be made consistent with the clearly expressed legislative intent? Only if the answer to this question were "no" would it become necessary to decide whether the law of interpretation grants clear text a trump over clear and irreconcilably conflicting legislative intent.
122. Not all of the federal district court cases on expert-witness fee shifting under the IDEA are characterized by superficial analysis. See, e.g., Brillon ex rel. Brillon v. Klein Indep. Sch. Dist., 274 F. Supp. 2d 864, 870-72 (S.D. Tex. 2003) (discussing § 1415's text, legislative history, statutory purpose, and interpretation in other courts), rev'd in part, 100 Fed. App'x 309 (5th Cir. 2004); Pazik v. Gateway Reg'l Sch. Dist., 130 F. Supp. 2d 217, 220-21 (D. Mass. 2001) (analyzing the text, legislative intent, and statutory purpose of § 1415 before discussing the Supreme Court's and First Circuit's uses of legislative history).
123. Field v. Haddonfield Bd. of Educ., 769 F. Supp. 1313 (D.N.J. 1991).
124. Aranow v. District of Columbia, 791 F. Supp. 318 (D.D.C. 1992).
125. W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83 (1991).
126. Aranow, 791 F. Supp. at 318. This sparse treatment is particularly troubling because the district court's opinion reconsidered and altered its previous decision to deny recovery of expert-witness fees in the same case based on the text of IDEA § 1415.
127. Mr. & Mrs. B. v. Weston Bd. of Educ., 34 F. Supp. 2d 777 (D. Conn. 1999).
128. Hiram C. v. Manteca Unified Sch. Dist., No. S-03-2568 WBS KJM, 2004 WL 4999156 (E.D. Cal. Nov. 5, 2004).
129. Mayo v. Booker, 56 F. Supp. 2d 597 (D. Md. 1999).
130. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) ("The government of the United States has been emphatically termed a government of laws, and not of men.").
131. FRIEDRICH A. HAYEK, THE ROAD TO SERFDOM 72 (1944) (defining the rule of law as requiring "that government in all its actions is bound by rules fixed and announced beforehand-rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances").
132. Extralegal policy considerations and the personal preferences of judges probably do affect judicial decisionmaking
133. RICHARD A. POSNER, OVERCOMING LAW 123-26 (1995) (analyzing how judicial behavior can be affected by extralegal factors and personal preferences).
134. JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED 86-96 (2002) (discussing the attitudinal model, which posits that the political ideologies of judges may drive their judicial decisions).
135. James J. Brudney & Corey Ditslear, Canons of Construction and the Elusive Quest for Neutral Reasoning, 58 VAND. L. REV. 1, 6, 94 (2005) (concluding that canons of construction "are regularly used in an instrumental if not ideologically conscious manner" and that the use of canons "is fundamentally a façade to justify certain judicially devised policy preferences").
136. Frank B. Cross, Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92 NW. U. L. REV. 251, 265-79 (1997) (discussing the attitudinal model, which "suggests that judicial decisionmaking is not based upon reasoned judgment from precedent, but rather upon each judge's political ideology and the identity of the parties").
137. Bryan D. Lammon, What We Talk About When We Talk About Ideology: Judicial Politics Scholarship and Naive Legal Realism, 83 ST. JOHN'S L. REV. 231, 244-45 (2009) (discussing the attitudinal model, which "posits that judges decide cases based on their political attitudes and values").
138. As a justification for judicial decisions, however, extralegal factors are almost never considered sufficient. Courts are expected to offer justifications for their decisions that are rooted in the application of legal principles, rather than extralegal factors.
139. See Robert J. Martineau, Craft and Technique, Not Canons and Grand Theories: A Neo-Realist View of Statutory Construction, 62 GEO. WASH. L. REV. 1, 33 (1993) ("The purpose of the opinion is, rather, to show that the decision is not arbitrary but can be supported rationally and is not inconsistent with prior decisions of the court or, in the case of a statute, with the text of the statute.").
140. Thomas W. Merrill, A Modest Proposal for a Political Court, 17 HARV. J.L. & PUB. POL'Y 137, 137 (1994) ("The legitimacy of the Supreme Court is widely assumed to depend on the perception that its decisions are dictated by law.").
141. Martin Shapiro, Judges as Liars, 17 HARV. J.L. & PUB. POL'Y 155, 155-56 (1994) ("Presumably, courts could tell the loser: 'You have lost because we, the judges, have chosen that you should lose. We have so chosen because we think society would be better off if you lost.' Courts have decided, however, in all of the societies that have a modern judicial system, to avoid the appearance of deciding cases based on judicial whim.... [I]n all modern societies, and in all cases, judges tell the loser: 'You did not lose because we the judges chose that you should lose. You lost because the law required that you should lose.'").
142. See Lawrence C. Marshall, The Canons of Statutory Construction and Judicial Constraints: A Response to Macey and Miller, 45 VAND. L. REV. 673, 685 (1992) ("In the case of statutory interpretation, the 'duty to the rules of law' is generally recognized to carry with it the obligation for the judge to do her best to interpret what Congress has said before she moves on to decide a case explicitly on her own policy preferences.... Whether or not a judge personally accepts this view of her role, the dominant legal culture that restrains and evaluates judges forces judges to adhere to it, at least in form.").
143. See Jerry L. Mashaw, Textualism, Constitutionalism, and the Interpretation of Federal Statutes, 32 WM. & MARY L. REV. 827, 838-39 (1991) ("In our law, however, the exercise of a power to speak authoritatively as an interpreter carries with it an obligation to explain the grounds upon which the interpreter gives that authoritative judgment. If we begin with the notion that giving such reasons will occur to us only in circumstances in which different approaches produce different results, the argument moves back a step. We, or the authoritative interpreter, must be able to state why some particular approach to reason-giving is a legitimate way to give authoritative meaning to the words of the text.").
144. See Frank H. Easterbrook, Some Tasks in Understanding Law Through the Lens of Public Choice, 12 INT'L REV. L. & ECON. 284, 287 (1992) ("Judges, more than other political actors, must answer the question of why anyone should obey. The president has the army, Congress the purse. Judges have reason.... The rule of law attracts formidable support only so long as people believe that there is a rule of law and not a rule by judges.... [I]t is most unlikely that obedience will long be forthcoming to an institution that appears to be simply subcommittee chairmen wearing robes.").
145. See Nicholas S. Zeppos, The Use of Authority in Statutory Interpretation: An Empirical Analysis, 70 TEX. L. REV. 1073, 1120 (1992) ("As in constitutional interpretation, scholars in the statutory field are confronted with the so-called countermajoritarian difficulty-the problem of life-tenured, unelected judges making policy decisions. If all or most statutory cases turn on policy factors left to the judge's choice, how can that exercise of power be considered legitimate?").
146. See Ward Farnsworth, Signature of Ideology: The Case of the Supreme Court's Criminal Docket, 104 MICH. L. REV. 67, 51 (2005) ("Everyone suspects that Supreme Court justices' own views of policy play a part in their decisions, but the size and nature of the part is a matter of vague impression and frequent dispute.").
147. JUDITH N. SHKLAR, LEGALISM: LAW, MORALS, AND POLITICAL TRIALS, at x (1986) ("[T]he quest for the holy grail of perfect, nonpolitical, aloof neutral law and legal decisions... remains a test for acceptability.").
148. Presumably, not only the justifications for judicial decisions, but also judicial decisions themselves, should be driven by legal norms
149. Cf. Micah Schwartzman, Judicial Sincerity, 94 VA. L. REV. 987, 991 (2008) (offering a nonconsequentialist argument in support of the courts' obligation to "not only justify their decisions, [but also] make the reasons for their decisions publicly available").
150. In this kind of case, courts do not necessarily face interpretive choice. Rather than choosing among competing injunctive interpretive principles, courts apply the same or similar interpretive principles but nonetheless grapple with conflicting, plausible constructions of a given statute.
151. Smith v. United States, 508 U.S. 223 (1993).
152. The 6-3 split at the Supreme Court level and the split among the circuit courts attest to the ambiguity of the language
153. Nonetheless, and somewhat incredibly, both the Supreme Court majority and dissenting opinions maintained that the statutory text was clear and not ambiguous
154. United States v. Phelps, 877 F.2d 28, 30 (9th Cir. 1989) (acknowledging that "the legislative history of § 924 is 'sparse'" (quoting United States v. Moore, 580 F.2d 360, 362 (9th Cir. 1978))).
155. The Supreme Court majority thought its expansive interpretation of the phrase was consistent with legislative intent and statutory purpose. See Smith, 508 U.S. at 240 ("Imposing a more restrictive reading of the phrase 'uses... a firearm' does violence not only to the structure and language of the statute, but to its purpose as well.... We therefore see no reason why Congress would have intended courts and juries applying § 924(c)(1) to draw a fine metaphysical distinction between a gun's role in a drug offense as a weapon and its role as an item of barter...." (first omission in original)). The Ninth Circuit, however, understood that Congress intended the statutory phrase to be limited to the use of a gun "as an offensive weapon" and not as an item of barter. See Phelps, 877 F.2d at 30 (discussing statutory purpose and legislative intent before concluding "that the mere presence of a firearm does not trigger the statute" because "Congress directed the statute at 'persons who chose to carry a firearm as an offensive weapon for a specific criminal act'" (quoting S. REP. NO. 98-225, at 314 n.10 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3492)).
156. See Smith, 508 U.S. at 228 (citing the ordinary-meaning principle, which dictates that "[w]hen a word is not defined by statute, [the court should] normally construe it in accord with its ordinary or natural meaning").
157. Only a few judges openly acknowledge the limits of legal norms and the role of extralegal policy factors in their decisionmaking
158. Courts are expected to offer justifications for their decisions that are rooted in the application of legal principles rather than extralegal factors
159. See Brian Z. Tamanaha, How an Instrumental View of Law Corrodes the Rule of Law, 56 DEPAUL L. REV. 469, 490 (noting that "the official line of the legal culture is still that judges are rule-bound in their decisions").
160. The litigants' Supreme Court briefs included extensive discussions of the conflicting injunctive interpretive principles. See Brief of Petitioner at 21-24, Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006) (No. 05-18) (arguing that the statutory language is unambiguous and that the Second Circuit therefore erred in relying on legislative history to construe the IDEA); Brief of Respondent at 16-17, 30, Arlington Cent., 548 U.S. 291 (No. 05-18) (asserting that the legislative history, the plain meaning of the statutory text, and sources contemporary to the statute indicated that the IDEA authorized the respondents to recover the cost of their expert's participation); Brief for the National Disability Rights Network and the Center for Law and Education as Amici Curiae in Support of Respondents at 17, 28, Arlington Cent., 548 U.S. 291 (No. 05-18) (arguing that the provision must be read in the context of the rest of the IDEA and its legislative history).
161. The simple fact that five Supreme Court Justices joined an opinion claiming that the law of interpretation grants statutory text a trump over legislative intent, whereas three Justices joined a dissent maintaining the exact opposite, undermines any argument in support of the avoidance maneuver's ability to deceive. A judicial assertion that the law of interpretation demands X, countered by a judicial assertion that the law of interpretation demands not-X, only reinforces the reality that the law of interpretation fails to resolve whether X or not-X should prevail.
162. See Scott C. Idleman, A Prudential Theory of Judicial Candor, 73 TEX. L. REV. 1307, 1310 (1995) (arguing in favor of weighing the prudential value of candor against competing values).
163. Nicholas S. Zeppos, Judicial Candor and Statutory Interpretation, 78 GEO. L.J. 353, 358-59 (1989) (arguing that judicial candor in statutory-interpretation cases would undermine the legitimacy of courts).
164. See Francis J. Mootz, III, Rethinking the Rule of Law: A Demonstration That the Obvious Is Plausible, 61 TENN. L. REV. 69, 71 (1993) ("No lawyer really believes that judges and administrators can apply rules derived from neutral premises without implicating their own values and perspectives.").
165. See Kathleen Hall Jamieson & Michael Hennessy, Public Understanding of and Support for the Courts: Survey Results, 95 GEO. L.J. 899, 899 (2007) (finding that "public knowledge about... the courts is low").
166. Herbert M. Kritzer, The Impact of Bush v. Gore on Public Perceptions and Knowledge of the Supreme Court, 85 JUDICATURE 32, 34 (2001) ("Most research on the public's knowledge of the Supreme Court concludes that the public knows little about the Court or its workings. A regularly cited example of the public's ignorance is that in 1989, 71 percent could not name a single member of the Court while 54 percent of the same sample could name the judge on the television show 'The People's Court.' That this survey found such results was not news to political scientists, who have long documented the minimal knowledge most citizens have about the Court.").
167. See also Gregory A. Caldeira, Court and Public Opinion, in THE AMERICAN COURTS: A CRITICAL ASSESSMENT 303, 303 (John B. Gates & Charles A. Johnson eds., 1991) (stating that Supreme Court decisions "lack... saliency in all but a few situations").
168. Ilya Somin & Sanford Levinson, Debate, Democracy, Political Ignorance, and Constitutional Reform, 157 U. PA. L. REV. PENNUMBRA 239, 247-48 (2009), http://www.pennumbra.com/debates/pdfs/ConstitutionalReform.pdf ("Former Justice Sandra Day O'Connor has recently complained that '[t]wo-thirds of Americans know at least one of the judges on the Fox TV show American Idol, but less than one in ten can name the Chief Justice of the United States Supreme Court.'" (alteration in original) (quoting Justice O'Connor)).
169. Not even Bush v. Gore, 531 U.S. 98 (2000), which was viewed by many commentators as driven by politics rather than law, and which was surely among the most widely reported Supreme Court cases of all time, meaningfully altered public perception of the Supreme Court.
170. Keith Bybee, The Rule of Law Is Dead! Long Live the Rule of Law! 4-5 (Syracuse Univ. Coll. of Law Faculty Scholarship, Paper 56, 2009), available at http://ssrn.com/abstract=1404600 (citing a 2005 survey finding that "an astounding 82 percent of those surveyed believed that the partisan background of judges influences court decisionmaking either some or a lot" and that "[a] majority of poll respondents agreed that even though judges always say that their decisions flow from the law and the Constitution, many judges are in fact basing their decisions on their own personal beliefs").
171. See R. DOUGLAS ARNOLD, THE LOGIC OF CONGRESSIONAL ACTION 64-71 (1990) (discussing and defining the attentive public versus the inattentive public).
172. Stephen B. Burbank, Alternative Career Resolution II: Changing the Tenure of Supreme Court Justices, 154 U. PA. L. REV. 1511, 1527 (2006) (commenting that "[s]tudy after study has shown that the public knows very little about the Court or its decisions, but that levels of awareness differ as between the attentive public... and the nonattentive public").
173. Doris Graber, Mediated Politics and Citizenship in the Twenty-First Century, 55 ANN. REV. PSYCHOL. 545, 563 (2004) ("While average citizens play important political roles in democracies, the bulk of the burden for political action has always been born by elected and appointed public officials and by citizens with above-average interest in politics whom scholars call 'the attentive public.' At best, that category comprises no more than 10% of the citizenry.").
174. Richard Lehne & John Reynolds, The Impact of Judicial Activism on Public Opinion, 22 AM. J. POL. SCI. 896, 901 (1978) (noting the difference between the attentive and the inattentive public and explaining that "[a]n unusually controversial court decision appears able to cross the attention threshold of some of those for whom the judicial system is not a matter of everyday concern").
175. See also Jon A. Krosnick, Government Policy and Citizen Passion: A Study of Issue Publics in Contemporary America, 12 POL. BEHAV. 59, 72-75 (1990) (discussing the hypothesis that only small segments of the public will likely care about any given policy issue).
176. Alternatively, the attentive public may care primarily about the substance of Supreme Court decisions and relatively little about whether they are driven by extant legal principles or by extralegal considerations. For example, public reaction to Bush v. Gore predictably split sharply along party lines.
177. Presumably, if substantive outcomes were not central to the public's reaction, then the divide between favorable and unfavorable evaluations would not have split so clearly along partisan lines. The strong negative public reaction to the 2005 Supreme Court decision on eminent domain, Kelo v. City of New London, 545 U.S. 469 (2005), is also consistent with the idea that substance is more important than legal reasoning in the attentive public's evaluation. Kelo applied existing legal principles on eminent domain.
178. ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 664 (3d ed. 2006). Nonetheless, Kelo "generated a massive backlash from across the political spectrum.".
179. Ilya Somin, The Limits of Backlash: Assessing the Political Response to Kelo, 93 MINN. L. REV. 2100, 2101 (2009).
180. If the attentive public is more concerned with substantive outcomes than the intricacies of the justifications offered in judicial opinions, then the avoidance maneuver's impact on attentive segments of the public will be of minimal significance
181. Consider two constitutional cases, Roe v. Wade, 410 U.S. 113 (1973), and Bush v. Gore, that have generated close and impassioned attention from interested segments of the public. It is unlikely that the losing attentive interest groups were convinced that the law had decided the outcomes in those cases. In both instances, the groups likely believed that legally unconstrained judicial discretion and extralegal considerations were determinative.
182. Both Professors Joseph Raz and Frank Cross make this point
183. JOSEPH RAZ, The Rule of Law and Its Virtue, in THE AUTHORITY OF LAW 210, 228 (1979) ("[The] rule of law.... has always to be balanced against competing claims of other values.").
184. Frank B. Cross, What Do Judges Want?, 87 TEX. L. REV. 183, 209 (2009).
185. Neil S. Siegel, The Virtue of Judicial Statesmanship, 86 TEX. L. REV. 959, 971-73 (2008) (discussing how factors other than fidelity to the rule of law are important to the legitimacy of the courts and how, in some instances, fidelity to the rule of law can harm the legitimacy of the courts).
186. Imagine, for example, a judge who accepts a bribe in exchange for granting summary judgment to the bribe offeror. Such a judicial decision would be illegitimate under any reasonable conception, even if it happened to adhere to the unambiguous requirements of uncontradicted preexisting legal norms.
187. See, e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133-29 (2000) (favoring legislative intent over clear contrary statutory text).
188. Anita S. Krishnakumar, The Hidden Legacy of Holy Trinity Church: The Unique National Institution Canon, 51 WM. & MARY L. REV. 1053, 1081-82 (2009) ("Although the statutory text clearly gave the FDA authority to regulate 'drugs' and 'devices,' the Court... concluded that Congress could not have intended... to give the FDA authority to regulate, and in effect ban, tobacco products." (quoting 21 U.S.C. § 321(g)-(h) (1994 & Supp. III 1998))).
189. See Elizabeth Garrett, Legal Scholarship in the Age of Legislation, 34 TULSA L.J. 679, 685 n.30 (1999) (discussing and citing works that suggest that textualist statutory interpretation can improve the legislative process).
190. Michael Herz, Judicial Textualism Meets Congressional Micromanagement: A Potential Collision in Clean Air Act Interpretation, 16 HARV. ENVTL. L. REV. 175, 204 (1992) ("One often-cited goal of textualism is to induce Congress to legislate with care and precision.").
191. See W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 113-16 (1991) (Stevens, J., dissenting) (suggesting that the examples of statutory amendments passed by Congress in response to textualist interpretations counsel against textualism and in favor of intentionalism).
192. See also Daniel J. Bussel, Textualism's Failures: A Study of Overruled Bankruptcy Decisions, 53 VAND. L. REV. 887, 909-11 (2000) (finding that textualist bankruptcy code decisions necessitate congressional override more often than do pragmatic interpretive decisions).
193. Judge Richard Posner makes a similar point in defending pragmatic judging. Judge Posner argues that, contrary to conventional wisdom, if judges acknowledge that they often exercise legally unconstrained discretion, they will be more circumspect in exercising discretion than if they operate under the false impression that the law dictates outcomes.
194. Those lower court opinions that deployed the second variation of the avoidance maneuver by offering no discussion of competing interpretive principles are most consistent with this idea
195. Dodd v. United States, 545 U.S. 353, 359 (2005) (alteration in original) (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, 530 U.S. 1, 6 (2000)) (internal quotation marks omitted).
196. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)) (internal quotation mark omitted).
197. Henry P. Monaghan, Taking Supreme Court Opinions Seriously, 39 MD. L. REV. 1, 25 (1979) (arguing that Justices may not actually rely on reasons not stated in their opinions).
198. David L. Shapiro, In Defense of Judicial Candor, 100 HARV. L. REV. 731, 736-38 (1987) (arguing that candor is required in judicial opinions).