Three symmetries between textualist and purposivist theories of statutory interpretation-and the irreducible roles of values and judgment within both

Cornell Law Review

Volumn 99, Issue 4, 2014, Pages 685-734

  Fallon Jr , Richard H ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 84902456534     PISSN: 00108847     EISSN: None     Source Type: Journal    
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References (162)

1. For a brisk survey of the leading modern theories, see RICHARD H. FALLON, JR., JOHN F. MANNING, DANIEL J. MELTZER & DAVID L. SHAPIRO, HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 622-26 (6th ed. 2009) [hereinafter HART & WECHSLER].
2. See John F. Manning, The New Purposivism, 2011 SUP. CT. REV. 113, 120.
3. But cf. RONALD DWORKIN, LAW'S EMPIRE 313 (1986) (characterizing the judicial "role as fundamentally the creative one of a partner continuing to develop, in what [the judge] believes is the best way, the statutory scheme Congress began")
4. William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479, 1482 (1987) (depicting judges as agents "who must often update their orders to meet changing circumstances").
5. See, e.g., Stephen Breyer, Our Democratic Constitution, 77 N.Y.U. L. REV. 245, 266 (2002) (arguing that "purposive" interpretation "reminds the judge . . . that it is in Congress, not the courts, where the Constitution places the authority to enact a statute")
6. Peter L. Strauss, Essay, The Courts and the Congress: Should Judges Disdain Political History?, 98 COLUM. L. REV. 242, 252-53 (1998) (arguing that purposivism makes courts the most effective agents of the legislature). In using the term "purposivism" as I do, I link two approaches that sometimes have been separated by subsuming what might be called "intentionalism" under the rubric of purposivism. As a conceptual matter, there is undoubtedly a clear difference between two varieties of statutory purpose: the specific intentions of the statute's enacting legislature and the more "general aim or policy which pervades a statute."
7. Archibald Cox, Judge Learned Hand and the Interpretation of Statutes, 60 HARV. L. REV. 370, 370-71 (1947)
8. see John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REV. 673, 677 & n.11 (1997) (discussing this distinction).
9. For an approach centered on the former kind of purpose, or what might be labeled legislative "intent," see Richard A. Posner, Statutory Interpretation - in the Classroom and in the Courtroom, 50 U. CHI. L. REV. 800, 817 (1983) ("The judge should try to think his way as best he can into the minds of the enacting legislators and imagine how they would have wanted the statute applied to the case at bar.").
10. For the classic statement of the latter, more general approach, see HENRY M. HART, Jr. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 1374, 1378 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) (urging interpreters to "[d]ecide what purpose ought to be attributed to the statute and to any subordinate provision of it which may be involved" on the assumption that the legislature consisted of "reasonable persons pursuing reasonable purposes reasonably," and to "[i]nterpret the words of the statute immediately in question so as to carry out the purpose" as well as possible).
11. See, e.g., Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HARV. J.L. & PUB. POL'Y 61, 63 (1994) (arguing that judges "are supposed to be faithful agents, not independent principals")
12. John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1, 18 (2001) ("The root of the textualist position is . . . in straightforward faithful agent theory.").
13. 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 A MATTER OF INTERPRETATION 3, 17-18 (Amy Gutmann ed., 1997) ("The practical threat is that, under the guise or even the self-delusion of pursuing unexpressed legislative intents, common-law judges will in fact pursue their own objectives and desires . . . .").
14. See John F. Manning, Textualism and Legislative Intent, 91 VA. L. REV. 419, 419-20 (2005).
15. See John F. Manning, What Divides Textualists From Purposivists?, 106 COLUM. L. REV. 70, 73, 79-80 (2006) (discussing the importance of context for textualism and purposivism)
16. see also ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 16, 32-33 (2012).
17. See John F. Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2456 (2003) [hereinafter Manning, Absurdity Doctrine] ("In contrast with their literalist predecessors in the 'plain meaning' school, modern textualists reject the idea that interpretation can occur 'within the four corners' of a statute."
18. quoting White v. United States, 191 U.S. 545, 551 (1903)
19. Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 SUP. CT. REV. 231, 252 ("Plain meaning . . . is a blunt, frequently crude, and certainly narrowing device, cutting off access to many features of some particular conversational or communicative or interpretive context that would otherwise be available to the interpreter or conversational participant.").
20. For an important previous exploration of convergences between textualist and purposivist theories, see Jonathan T. Molot, The Rise and Fall of Textualism, 106 COLUM. L. REV. 1, 34-43 (2006).
21. There may be some similarities to the psychological theory of cognitive dissonance, according to which "we have, built into the workings of our mind[s], a mechanism that creates an uncomfortable feeling of dissonance, or lack of harmony, when we become aware of some inconsistency among the various attitudes, beliefs, and items of knowledge that constitute our mental store." PETER GRAY, PSYCHOLOGY 520 (4th ed. 2002).
22. The theory traces to LEON FESTINGER, A THEORY OF COGNITIVE DISSONANCE 3 (1957) ("The existence of dissonance, being psychologically uncomfortable, will motivate the person [experiencing it] to try to reduce the dissonance and achieve consonance.").
23. For overviews of research on cognitive dissonance, see, for example, COGNITIVE DISSONANCE: PROGRESS ON A PIVOTAL THEORY IN SOCIAL PSYCHOLOGY (Eddie Harmon-Jones & Judson Mills eds., 1999) (evaluating studies on cognitive dissonance in various settings)
24. DANIEL T. GILBERT ET AL., THE HANDBOOK OF SOCIAL PSYCHOLOGY 335-37 (4th ed. 1998) (surveying studies on cognitive dissonance).
25. Acontextuality could never be more than relative. Cf. Martha Minow & Elizabeth V. Spelman, In Context, 63 S. CAL. L. REV. 1597, 1651 (1990) ("[T]he call to make judgments in context . . . seems misleading if it implies that we could ever make judgments outside of a context; the question is always what context matters or what context should we make matter for this moment.").
26. An analogy involves what philosophers of language sometimes refer to as "default meaning." "[D]efault interpretation of the speaker's utterance is normally understood to mean salient meaning intended by the speaker, or presumed by the addressee to have been intended, and recovered (a) without the help of inference from the speaker's intentions or (b) without conscious inferential process altogether." Katarzyna M. Jaszczolt, Defaults in Semantics and Pragmatics, in THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta ed., 2010), http://plato.stanford.edu/archives/win2010/entries/ defaultssemantics- pragmatics. But the literature contains "no one, unique 'default model' of utterance interpretation."
27. See Marcelo Dascal & Jerzy Wroblewski, Transparency and Doubt: Understanding and Interpretation in Pragmatics and in Law, 7 LAW & PHIL. 203, 220 (1988) ("A legal text which formulates legal rules is always understood in the context of the legal system to which these rules belong. It is usually assumed that such system has - or should have - the properties of consistency, coherence and eventually completeness and lack of redundancy. Whenever the direct reading of a legal text does not conform to such assumed properties, one can say that the systemic context generates a doubt that prompts a search for a more appropriate interpretation.")
28. See, e.g., Zuni Pub. Sch. Dist. No. v. Dep't of Educ., 550 U.S. 81, 116 (2007) (Scalia, J., dissenting) (derisively describing the majority opinion as adopting the approach of "that miraculous redeemer of lost causes, Church of the Holy Trinity")
29. ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY: AN INSTITUTIONAL THEORY OF LEGAL INTERPRETATION 93-102 (2006) (arguing that the Court erred in both the framing and the execution of its inquiry).
30. For discussions of interpretive methodology focused specifically on § 1983, see generally Harry A. Blackmun, Section 1983 and Federal Protection of Individual Rights - Will the Statute Remain Alive or Fade Away?, 60 N.Y.U. L. REV. 1 (1985) (discussing the proper scope of federal protection of individual rights under § 1983)
31. Theodore Eisenberg, Section 1983: Doctrinal Foundations and an Empirical Study, 67 CORNELL L. REV. 482 (1982) (discussing the Court's contributions to current confusion in interpreting § 1983)
32. Seth F. Kreimer, The Source of Law in Civil Rights Actions: Some Old Light on Section 1983, 133 U. PA. L. REV. 601, 604-11 (1985) (discussing how federal courts have sketched out the details of § 1983).
33. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
34. See, e.g., John F. Manning, Competing Presumptions About Statutory Coherence, 74 FORDHAM L. REV. 2009, 2029 (2006)
35. Nat'l Private Truck Council, 515 U.S. at 586.
36. The vocabulary may have some tendency to confuse. Although textualists say that they are concerned with semantic context, what they seek to ascertain is not limited to a legal text's "semantic meaning" insofar as the semantic content of an expression "is fully determined by the lexical meaning of the words used and the syntactical structure of the sentence." Andrei Marmor, Textualism in Context 6 (U.S.C. Gould Sch. of Law Legal Studies Research Paper Series, Paper No. 12-13, 2012), available at http://papers.ssrn. com/sol3/papers.cfm?abstract-id=2112384. Rather, textualists seek to identify a legal text's pragmatic or contextual, rather than its purely semantic, meaning.
37. See Richard H. Fallon, Jr., Why Abstention Is Not Illegitimate: An Essay on the Distinction Between "Legitimate" and "Illegitimate" Statutory Interpretation and Judicial Lawmaking, 107 NW. U. L. REV. 847, 878-79 (2013)
38. cf. David Charny, Hypothetical Bargains: The Normative Structure of Contract Interpretation, 89 MICH. L. REV. 1815, 1830 (1991) ("Nothing about the necessary contexts that provide the basis for interpretation can tell one how far one should go in getting information about that context."). Issues arising from the need to frame the context within which statutory interpretation properly occurs may exemplify the more profound claim that in continuous relationships played out over time, such as those involving the government and its citizens or Congress and the courts, "constitutional law has no criteria for isolating transactions from . . . background relationship[s]" and that the "framing" of transactions or contexts for analysis is therefore frequently outcome determinative in legal controversies.
39. Daryl J. Levinson, Framing Transactions in Constitutional Law, 111 YALE L.J. 1311, 1313 (2002).
40. See Abner S. Greene, The Missing Step of Textualism, 74 FORDHAM L. REV. 1913, 1923 (2006) (characterizing the absence of a principled method for distinguishing relevant from irrelevant aspects of background knowledge as "the missing step of textualism")
41. Jonathan R. Siegel, Textualism and Contextualism in Administrative Law, 78 B.U. L. REV. 1023, 1029-32 (1998) (emphasizing the importance of the question of what constitutes relevant context for administrative law adjudication and calling attention to background principles).
42. Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949).
43. See, e.g., Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 HARV. J.L. & PUB. POL'Y 59, 65 (1988) ("We should look at the statutory structure and hear the words as they would sound in the mind of a skilled, objectively reasonable user of words.")
44. DONALD DAVIDSON, Representation and Interpretation, in PROBLEMS OF RATIONALITY 87, 97 (2004).
45. Cf. Abbe R. Gluck, The States As Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 YALE L.J. 1750, 1768 (2010) (conceding that "one cannot prove that methodology dictates outcomes in cases" but emphasizing that "it surely affects opinion writing").
46. But cf. James J. Brudney & Corey Ditslear, Canons of Construction and the Elusive Quest for Neutral Reasoning, 58 VAND. L. REV. 1, 58-60 (2005) (concluding that Justices' reliance on either substantive or language canons of construction is driven by ideology, not methodology)
47. Frank B. Cross, The Significance of Statutory Interpretive Methodologies, 82 NOTRE DAME L. REV. 1971, 1991-95 (2007) (finding that convergence upon textualist and purposivist methodologies does not produce consensus among the Justices with respect to results).
48. I also make no effort to compare the relative merits of either textualism or purposivism with theories that call for statutory interpreters to play roles other than that of a faithful agent of the enacting legislature. In the domain of constitutional interpretation, I have elsewhere defended an approach in which precedent, among other factors, sometimes calls for interpretive conclusions other than those that a faithful agent of the framers and ratifiers of relevant constitutional provisions might have reached. See RICHARD H. FALLON, JR., IMPLEMENTING THE CONSTITUTION 111-26 (2001)
49. Richard H. Fallon, Jr., Constitutional Precedent Viewed Through the Lens of Hartian Positivist Jurisprudence, 86 N.C. L. REV. 1107, 1116 (2008) (arguing that overturning some settled but mistaken precedents "would exceed [the Court's] lawful authority").
50. FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE 207 (1991).
51. See, e.g., DONALD DAVIDSON, Radical Interpretation, in INQUIRIES INTO TRUTH AND INTERPRETATION 125, 125 (2d ed. 2001) [hereinafter DAVIDSON, Radical Interpretation] ("All understanding of the speech of another involves radical interpretation.")
52. DONALD DAVIDSON, Belief and the Basis of Meaning, in INQUIRIES INTO TRUTH AND INTERPRETATION, supra, at 141, 141 ("We interpret a bit of linguistic behaviour when we say what a speaker's words mean on an occasion of use.").
53. See DENNIS PATTERSON, LAW AND TRUTH 86-88 (1996) (criticizing Dworkin as making "far too much of the work of interpretation").
54. See RONALD BEINER, POLITICAL JUDGMENT 131 (1983)
55. As Duncan Kennedy emphasizes, there may be occasions on which a sense of uncertainty or puzzlement emerges from a prior, instrumentally or ideologically motivated effort to discover vagueness or ambiguity that a first-blush meaning would not otherwise have displayed. See Duncan Kennedy, Freedom and Constraint in Adjudication: A Critical Phenomenology, 36 J. LEGAL EDUC. 518, 547-48 (1986). It is, for example, a familiar role of lawyers to attempt to generate doubts where judges would not otherwise have felt them. Professor Kennedy points out that judges, spurred by ideological commitment, might assume a similar role.
56. As so defined, ambiguity is different from, and does not subsume all cases of, vagueness. See Ralf Poscher, Ambiguity and Vagueness in Legal Interpretation, in THE OXFORD HANDBOOK OF LANGUAGE AND LAW 128, 129 (Peter M. Tiersma & Lawrence M. Solan eds., 2012) ("Ambiguous expressions have multiple meanings, as in the case of the homonym 'bank' which can mean both 'river bank' and 'commercial bank.' . . . In contrast, an expression is vague if it has borderline cases.")
57. Lawrence B. Solum, The Interpretation-Construction Distinction, 27 CONST. COMMENT. 95, 97-98 (2010) ("In the technical sense, ambiguity refers to the multiplicity of sense: a term is ambiguous if it has more than one sense. . . . The technical sense of vagueness refers to the existence of borderline cases: a term is vague if there are cases where the term might or might not apply.").
58. See TIMOTHY A.O. ENDICOTT, VAGUENESS IN LAW 9 (2000) (describing a law as "vague if the boundaries of the area affected by [it] are unclear")
59. see also H.L.A. HART, THE CONCEPT OF LAW 126 (3d ed. 2012) ("There will indeed be plain cases . . . to which general expressions are clearly applicable . . . but there will also be cases where it is not clear whether they apply or not.").
60. This much-discussed example apparently originated with H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 607 (1958).
61. See Tenney v. Brandhove, 341 U.S. 367 (1951).
62. See Staples v. United States, 511 U.S. 600, 619 (1994)
63. Young v. United States, 535 U.S. 43, 49 (2002)
64. quoting Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95 (1990).
65. Christopher Gauker, The Principle of Charity, 69 SYNTHESE 1, 1 (1986).
66. WILLARD VAN ORMAN QUINE, WORD AND OBJECT 59 & n.2 (1960).
67. In a particularly well-known example, H.P. Grice identifies a number of normative "maxims" that are conventionally at work in human conversation and that function to facilitate cooperation in the communication of thought and information, including "[m]ake your contribution as informative as is required," "[t]ry to make your contribution one that is true," "[b]e relevant," and "[a]void obscurity of expression." PAUL GRICE, STUDIES IN THE WAY OF WORDS 26-28 (1989). According to Grice, we normally trust others to observe these maxims and feel entitled to draw inferences about the meaning of their utterances in reliance on them.
68. For the argument that Grice's theory functions better as a theory of communication than as a theory of meaning, see Heidi M. Hurd, Sovereignty in Silence, 99 YALE L.J. 945, 965 & n.52 (1990) ("Contrary to what Grice contended, we must look to the conventions which govern the meaning of sentences to determine what a speaker means rather than look to what the speaker means to determine what his or her sentences mean.").
69. Caleb Nelson, What is Textualism?, 91 VA. L. REV. 347, 353-57 (2005) (discussing textualists' search for statutes' "objectified intent").
70. Jonathan E. Adler, Charity, Interpretation, Fallacy, 29 PHIL. & RHETORIC 329, 330 (1996). Adler not only ascribes this view to Davidson but also ultimately defends it.
71. See Brogan v. United States, 522 U.S. 398, 406 (1998)
72. citing United States v. Palmer, 16 U.S. (3 Wheat.) 610, 631 (1818) (invoking interpretive presumption that statutes do not apply extraterritorially)
73. See, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55-56 (1996)
74. quoting Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 786 (1991) (stating that, as a result of "the important role played by the Eleventh Amendment and the broader principles that it reflects," a congressional intent to abrogate state sovereign immunity "must be obvious from 'a clear legislative statement'")
75. Gregory v. Ashcroft, 501 U.S. 452, 460 (1991)
76. quoting Atascadero State Hosp. v. Scanlon, 473 U. S. 234, 242 (1985) (relying on a presumption that "if Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute" in concluding that a federal statute barring age discrimination by employers, including States, did not apply to state judges (internal quotation marks omitted)).
77. See, e.g., Webster v. Doe, 486 U.S. 592, 603 (1988) (demanding a "heightened showing" of congressional intent to preclude judicial review of constitutional claims in light of the "serious constitutional question" that a denial of review would raise).
78. See, e.g., United Steelworkers of Am. v. Weber, 443 U.S. 193, 200-08 (1979) (holding that a provision of Title VII making racial discrimination unlawful did not forbid private affirmative action plans because the "background of the legislative history of Title VII and the historical context from which the Act arose" revealed an intent to benefit historically disadvantaged groups). 85 131 S. Ct. 1910 (2011).
79. On the awakening of interest in theories of statutory interpretation, see Philip P. Frickey, From the Big Sleep to the Big Heat: The Revival of Theory in Statutory Interpretation, 77 MINN. L. REV. 241, 248-49 (1992).
80. Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 539 (1947) (arguing that "the judge must seek and effectuate" a statute's "aim" or "policy").
81. See Jonathan R. Siegel, The Inexorable Radicalization of Textualism, 158 U. PA. L. REV. 117, 121 (2009) (arguing that a "pure" version of textualism would allow "absurd" results).
82. See, e.g., Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ., 550 U.S. 81, 106 (2007) (Stevens, J., concurring) ("Analysis of legislative history is . . . a traditional tool of statutory construction. There is no reason why we must confine ourselves to, or begin our analysis with, the statutory text if other tools of statutory construction provide better evidence of congressional intent with respect to the precise point at issue." (footnote omitted))
83. Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 611 n.4 (1991) ("As for the propriety of using legislative history[,] . . . common sense suggests that inquiry benefits from reviewing additional information rather than ignoring it. As Chief Justice Marshall put it, '[w]here the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived.'" (alteration in original)
84. quoting United States v. Fisher, 6 U.S. (2 Cranch) 358, 386 (1805)
85. Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. CAL. L. REV. 845, 848 (1992) (arguing that "[l]egislative history helps a court understand the context and purpose of a statute").
86. See 22 N.E. 188, 189-90 (N.Y. 1889).
87. See, e.g., Alan D. Miller & Ronen Perry, The Reasonable Person, 87 N.Y.U. L. REV. 323, 391 (2012) (maintaining that "a positive definition of reasonableness is a logical impossibility" because "no positive definition can satisfy" all of the axioms that a positive definition would need to embrace).
88. See, e.g., JOHN RAWLS, POLITICAL LIBERALISM 49 n.1 (1993) ("[K]nowing that people are rational we do not know the ends they will pursue, only that they will pursue them intelligently. Knowing that people are reasonable where others are concerned, we know that they are willing to govern their conduct by a principle from which they and others can reason in common; and reasonable people take into account the consequences of their actions on others' well-being."
89. citing W.M. Sibley, The Rational Versus the Reasonable, 62 PHIL. REV. 554, 560 (1953))
90. T.M. SCANLON, WHAT WE OWE TO EACH OTHER 191-92 (1998) (suggesting that rationality entails a simple capacity for means-ends analysis while reasonableness involves "tak[ing] others' interests into account".
91. Issues arising from reasonable disagreement are endemic both to law, see, e.g., JEREMY WALDRON, LAW AND DISAGREEMENT 4-6 (1999) ("Law . . . represents the aspiration to justice of a community . . . not of those who think similarly, but of those who think differently, about matters of common concern."
92. 467 U.S. 837, 843-44 (1984).
93. Aharon Barak, A Judge on Judging: The Role of a Supreme Court in a Democracy, 116 HARV. L. REV. 19, 75 (2002).
94. See Stanley Fish, Intention Is All There Is: A Critical Analysis of Aharon Barak's Purposive Interpretation in Law, 29 CARDOZO L. REV. 1109, 1135-36 (2008).
95. Frank H. Easterbrook, The Case of the Speluncean Explorers: Revisited, 112 HARV. L. REV. 1876, 1913-14 (1997).
96. But cf. United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483, 490 (2001) (describing as "an open question whether federal courts ever have authority to recognize a necessity defense not provided by statute").
97. Young v. United States, 535 U.S. 43, 49-50 (2002).
98. See Brogan v. United States, 522 U.S. 398, 406 (1998)
99. See Brogan, 522 U.S. at 406
100. Young, 535 U.S. at 49-50
101. quoting Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95 (1990).
102. See Nat'l Private Truck Council, Inc. v. Okla. Tax Comm'n, 515 U.S. 582, 589 (1995) ("[W]e must interpret § 1983 in light of the strong background principle against federal interference with state taxation."). Justice Scalia joined Justice Thomas's opinion for the Court.
103. See, e.g., Burns v. Reed, 500 U.S. 478, 497 (1991) (Scalia, J., concurring in the judgment in part and dissenting in part). 122 501 U.S. 452, 473 (1991).
104. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985) (internal quotation marks omitted).
105. In a concurring opinion in Nixon v. Missouri Municipal League, Justice Scalia, joined by Justice Thomas, relied on the Gregory presumption to conclude that a federal statute did not "limit the power of States to restrict the delivery of telecommunications services by their political subdivisions." 541 U.S. 125, 141 (2004) (Scalia, J., concurring).
106. William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 623 (1990) ("The new textualism posits that once the Court has ascertained a statute's plain meaning, consideration of legislative history becomes irrelevant. Legislative history should not even be consulted to confirm the apparent meaning of a statutory text.")
107. See, e.g., Green v. Bock Laundry Mach. Co., 490 U.S. 504, 527 (1989) (Scalia, J., concurring in the judgment) (relying on legislative history "to verify that what seems to us an unthinkable disposition . . . was indeed unthought of")
108. But see William N. Eskridge, Jr., The New Textualism and Normative Canons, 113 COLUM. L. REV. 531, 561 (2013)
109. reviewing ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS (2012)) (characterizing Justice Scalia's purportedly purely textual analysis as "crazy" insofar as it purported to exclude the purpose of the statute).
110. Cf. JOSEPH RAZ, BETWEEN AUTHORITY AND INTERPRETATION 118-20 (2009) (asserting the dependence of theories of legal interpretation on moral theory and denying the possibility of "a general theory of legal interpretation" or an "operational" moral theory that would prescribe correct conclusions to someone who did not already have good moral judgment).
111. In order to determine how precepts and theories apply to particular cases, we ordinarily count not on proliferating layers of interpretive rules but, instead, on the availability of a foundational human capacity such as that of "understanding" with respect to utterances that require no clarification, see ANDREI MARMOR, INTERPRETATION AND LEGAL THEORY 22 (1992)
112. See Dan M. Kahan, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, 125 HARV. L. REV. 1, 19 (2011) (defining "motivated reasoning" as "the unconscious tendency of individuals to process information in a manner that suits some end or goal extrinsic to the formation of accurate beliefs"). Modern psychological research has confirmed what common sense has always suggested: human beings have a powerful psychological propensity to determine facts and appraise arguments in ways that accord with their preexisting, ideologically inflected beliefs and preferences.
113. Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 335-36 (1997) (Scalia, J., concurring).
114. See, e.g., Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1664 (2013) (noting that the canon presuming that statutes do not apply extraterritorially "serves to protect against unintended clashes between our laws and those of other nations which could result in international discord"
115. quoting EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991).
116. McQuiggin v. Perkins, 133 S. Ct. 1924, 1941 (2013) (Scalia, J., dissenting).
117. See Abbe R. Gluck & Lisa Shultz Bressman, Statutory Interpretation from the Inside - An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 STAN. L. REV. 901, 926-64 (2013).
118. Cf. David K. Henderson, The Principle of Charity and the Problem of Irrationality (Translation and the Problem of Irrationality), 73 SYNTHESE 225, 226-27 (1987) (arguing that the principle of charity disfavors but should not preclude some ascriptions of irrationality). 164 515 U.S. 687, 690 (1995).
119. Sweet Home, 515 U.S. at 708.
120. Sweet Home, 515 U.S. at 714 (Scalia, J., dissenting).
121. McQuiggin v. Perkins, 133 S. Ct. 1924 (2013)
122. Cf. Michael H. v. Gerald D., 491 U.S. 110, 127 n.6 (1989) (plurality opinion of Scalia, J.) (maintaining that the appropriate "level of generality" at which to identify a constitutionally pertinent tradition is "the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified").
123. For discussion of the pertinence of levels of generality and the difficulties in establishing them without making value judgments, see generally Laurence H. Tribe & Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U. CHI. L. REV. 1057 (1990).
124. Such issues arise nearly ubiquitously in the modern administrative state, in which new legislation routinely threatens to conflict with existing statutory regulation touching the same domain. See David J. Barron & Todd D. Rakoff, In Defense of Big Waiver, 113 COLUM. L. REV. 265, 302-03 (2013). 174 535 U.S. 137 (2002).
125. Pub. L. No. 99-603, 100 Stat. 3359 (codified as amended in scattered sections of 8 U.S.C.).
126. Hoffman Plastic, 535 U.S. at 148-49.
127. See, e.g., City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 121 (2005) ("The provision of an express, private means of redress in the statute itself is ordinarily an indication that Congress did not intend to leave open a more expansive remedy under § 1983.")
128. Middlesex Cnty. Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 20 (1981) ("When the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983.").
129. Although Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405, 421-22 (1989)
130. characterizes § 1983 as "delegat[ing] power to make common law," the Court does not consistently treat § 1983 as a de facto, across-the-board delegation to it of common lawmaking authority, on a par, for example, with the Sherman Antitrust Act. Compare, e.g., Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 899-900 (2007)
131. ("From the beginning the Court has treated the Sherman Act as a common-law statute."), with Nat'l Private Truck Council, Inc. v. Okla. Tax Comm'n, 515 U.S. 582, 588 (1995)
132. ("Congress did not authorize injunctive or declaratory relief under § 1983 in state tax cases . . . ."), and Patsy v. Bd. of Regents, 457 U.S. 496, 507 (1982) ("[T]he 1871 Congress did not intend that an individual be compelled in every case to exhaust state administrative remedies before filing an action under § 1 of the Civil Rights Act."). In any event, a textualist who believed that § 1983 could be appropriately characterized as a "common law statute," subject to special interpretive principles, would need to explain that conclusion by reference to a very broad, and contestable, specification of the statute's interpretive context. 181 515 U.S. 582, 588 (1995).
133. See, e.g., Heck v. Humphrey, 512 U.S. 477, 483-84 (1994) (Scalia, J.) ("[T]o determine whether there is any bar to [a § 1983] suit, we look first to the common law of torts.").
134. See, e.g., Buckley v. Fitzsimmons, 509 U.S. 259, 279-80 (1993) (Scalia, J., concurring) (citing "a well-established common-law privilege [that existed] in 1871, when § 1983 was enacted")
135. Burns v. Reed, 500 U.S. 478, 497-98 (1991) (Scalia, J., concurring in the judgment in part and dissenting in part) (arguing that "the common-law practice, which governs whether absolute immunity exists under § 1983, is that this prosecutorial action would have enjoyed only qualified immunity").
136. See, e.g., Heck, 512 U.S. at 483-84 (holding that § 1983 was unavailable for bringing a plaintiff's wrongful imprisonment claim because common law malicious prosecution actions required "termination of the prior criminal proceeding in favor of the accused").
137. See, e.g., Pierson v. Ray, 386 U.S. 547, 554-55 (1967) ("The legislative record [of § 1983] gives no clear indication that Congress meant to abolish wholesale all common-law immunities."). In Rehberg v. Paulk, the Court noted that while its "approach is tied to the common law's identification of the functions that merit the protection of absolute immunity, the Court's precedents have not mechanically duplicated the precise scope of the absolute immunity that the common law provided to protect those functions," but instead have innovated where necessary to accommodate modern policy concerns.
138. S. Ct. 1497, 1503-04 (2012).
139. Due in part to stare decisis, Justice Scalia and Justice Thomas have acquiesced in an approach that strays from the common law in certain instances. See, e.g., Kalina v. Fletcher, 522 U.S. 118, 132-35 (1997) (Scalia, J., concurring)
140. Heck, 512 U.S. at 491 (Thomas, J., concurring).
141. See, e.g., Younger v. Harris, 401 U.S. 37, 54 (1971) (holding that "the possible unconstitutionality of a statute 'on its face' does not in itself justify an injunction against good-faith attempts to enforce it" and declining to consider whether any Act of Congress authorizes such an injunction).
142. But see Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 YALE L.J. 71, 84 (1984) ("The language of the relevant statutes leaves no room for judicial limitation or modification . . . . Moreover, the very purpose of [the Reconstruction] legislation [often involved in abstention cases] was to interpose the federal judiciary between the state and individual, largely because of concern about the functioning of state judiciaries."). 187 517 U.S. 706, 717 (1996).
143. Either the ultimate example of interpretive purposivism or its limiting case came in Harlow v. Fitzgerald, 457 U.S. 800 (1982), in which the Court self-consciously reformulated the standard for defining the qualified immunity that most officials enjoy.
144. As David Shapiro has put it, the Court reads jurisdiction-conferring statutes against the background of "experience and tradition" - which might be redescribed as either a semantic or a policy context - in light of which it has felt free to identify circumstances in which statutes should be "read as an authorization to the court to entertain an action but not as an inexorable command" to do so. David L. Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. REV. 543, 574-75 (1985). 194 143 U.S. 457 (1892).
145. See William N. Eskridge, Jr., Textualism, The Unknown Ideal?, 96 MICH. L. REV. 1509, 1518 (1998)
146. reviewing ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997) (asserting that in its historical context the Alien Contract Labor Act's reference to "labor or service" would have been understood to mean "physical and helper work").
147. See 132 S. Ct. 694, 705 & n.2, 706 (2012). In the first of the modern cases finding a ministerial exception to Title VII of the 1964 Civil Rights Act, the Fifth Circuit relied on the canon counseling construction of statutes to avoid "a serious doubt of constitutionality" in holding that "Congress did not intend, through the nonspecific wording of the applicable provisions of Title VII, to regulate the employment relationship between church and minister." McClure v. Salvation Army, 460 F.2d 553, 560-61 (5th Cir. 1972).
148. Following McClure, eight other circuit courts explicitly adopted a ministerial exception, see Note, The Ministerial Exception to Title VII: The Case for a Deferential Primary Duties Test, 121 HARV. L. REV. 1776, 1778 & n.19 (2008), which they also extended to statutes such as the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act, and state common law claims against religious employers
149. see Hollins v. Methodist Healthcare, Inc., 474 F.3d 223, 225 (6th Cir. 2007) (collecting cases). But the Fourth Circuit broke with McClure by concluding that the statutory language would not support a construction that exempted suits by ministers from its coverage and by putting its decision squarely on constitutional grounds.
150. See Rayburn v. Gen. Conference of Seventh-Day Adventists, 772 F.2d 1164, 1165, 1167 (4th Cir. 1985).
151. Thereafter, other circuits seem generally to have followed Rayburn in characterizing their conclusions as constitutionally dictated, see Benton C. Martin, Comment, Protecting Preachers from Prejudice: Methods for Improving Analysis of the Ministerial Exception to Title VII, 59 EMORY L.J. 1297, 1304-06 (2010)
152. though the Ninth Circuit, in Bollard v. Cal. Province of the Soc'y of Jesus, 196 F.3d 940, 945 (9th Cir. 1999), said it was adopting a "narrowing construction of Title VII."
153. See also Petruska v. Gannon Univ., 462 F.3d 294, 303 n.4 (3d Cir. 2006) ("Whereas some courts have derived the ministerial exception from the doctrine of constitutional avoidance, others have determined that, under its plain language, Title VII applies to ministerial employment decisions, but they have nevertheless concluded that such an application is unconstitutional." (citations omitted)).
154. In establishing that "the Courts of Appeals have uniformly recognized the existence of a 'ministerial exception' . . . that precludes application of [antidiscrimination] legislation to claims concerning the employment relationship between a religious institution and its ministers," Hosanna-Tabor, 132 S. Ct. at 705, the Supreme Court did not distinguish among lower court cases that had based the exception on grounds of statutory interpretation pursuant to the "avoidance canon" and those that had held statutes unconstitutional insofar as they failed to provide a ministerial exemption. Nor did the Court wholly resolve the ambiguity in its own analysis. It began by stating "[w]e agree there is . . . a ministerial exception."
155. Egelhoff v. Egelhoff, 532 U.S. 141, 152 (2001).
156. William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Difference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 GEO. L.J. 1083 (2008).
157. Cf. Rose v. Rose, 481 U.S. 619, 644 (1987) (Scalia, J., concurring in part and concurring in the judgment) (criticizing the Court for assuming "a broad power to limit clear text on the basis of apparent congressional purpose")
158. Cf. Richard H. Fallon, Jr., The "Conservative" Paths of the Rehnquist Court's Federalism Decisions, 69 U. CHI. L. REV. 429, 462 (2002) (maintaining that the conservatism of the majority Justices of the Rehnquist Court sometimes trumped their commitment to judicial federalism in statutory preemption cases).
159. For example, some commentators have maintained that these two Justices have frequently joined their colleagues in failing to abide by textualist commitments in many statutory preemption cases, see, e.g., Daniel J. Meltzer, Preemption and Textualism, 112 MICH. L. REV. 1, 22 (2013), at least prior to Justice Thomas's apparently nearly total renunciation of implied preemption analysis in Wyeth v. Levine, 555 U.S. 555, 604 (2009) (Thomas, J., concurring in the judgment) ("I can no longer assent to a doctrine that pre-empts state laws merely because they stand as an obstacle to . . . the full purposes and objectives of federal law . . . ." (internal quotation marks and citations omitted)).
160. Cf. John David Ohlendorf, Textualism and Obstacle Preemption, 47 GA. L. REV. 369, 427-38, 442 (2013) (identifying implicit textualist assumptions about meaning in context that permit "a rapprochement between textualism and obstacle preemption").
161. For the argument that Justice Thomas's stance in implied preemption cases fits uneasily with his readiness to employ broadly purposive analysis in interpreting preemption and savings clauses, see Catherine M. Sharkey, Against Freewheeling, Extratextual Obstacle Preemption: Is Justice Clarence Thomas the Lone Principled Federalist?, 5 N.Y.U. J.L. & LIBERTY 63, 95-98 (2010).
162. Cf. Todd D. Rakoff, Statutory Interpretation as a Multifarious Enterprise, 104 NW. U. L. REV. 1559, 1585 (2010) (maintaining that "[t]o assert that a statute has a clear meaning . . . is to claim that one particular interpretive frame . . . should be used" and that "ambiguity very often results precisely from the fact that there is more than one frame of reference with a decent claim to being relevant").