In a discussion regarding my previous post on Halbig, Eric Segall tweeted the following:
[W]e have . . . known since the realists of the 30’s that Stat[utory] Inter[pretation] Principles don’t decide cases.
And of course he’s right. Even Justice Scalia concedes that canons of construction or generic neutral principles can’t be applied in a mechanical manner. But that doesn’t mean that principles of statutory interpretation don’t matter at all.
One of the things I most enjoy about teaching statutory interpretation is that it often shakes students free of their newly adopted “realism all the way down” attitudes. After reading 5-4 Supreme Court cases decided along ideological lines, it’s easy for students to think that all law is political and that the Justices (and perhaps all judges) have made up their minds before reading the briefs. Just last quarter, while teaching persuasive writing, a student asked something along these lines:
Does any of this really matter? I mean, is the Judge really going to change her mind because I phrased the issue in a certain way, or because I led with a particular style of topic sentence?
In some cases, it probably doesn’t matter. How you craft a topic sentence is likely not going to sway Justice Thomas one way or the other on the scope of the Commerce Clause. And there’s nothing wrong with that! I make a related point here:
We expect the Justices to have views on general matters of constitutional law. That is, after all, why Presidents often appoint sitting judges, lawyers, or law professors to the Supreme Court instead of appointing psychologists or mechanical engineers. We neither want nor expect each decisions to be drawn on a blank slate.
But there are numerous cases for which framing and phrasing do matter, and many of those are statutory interpretation cases. Sure, Justice Thomas might have an unshakable view about the scope of the commerce power, but what about the scope of a statutory exception to the waiver of sovereign immunity at issue in Ali v. Fed. Bureau of Prisons, where he was joined by Justice Ginsburg over a dissent penned by Justice Kennedy? There are numerous examples of bland (well, they are not bland to me, but you understand) statutory interpretation cases that breakdown along interesting, counterintuitive, and non-ideological lines.
Which is not to say that the Justices (and judges) don’t come to these cases with preexisting ideas about how statutory interpretation should be done. Some judges are likely more focused on the strict text while others are more swayed be intentionalist arguments. To use the Halbig example: even Halbig supporters concede there is some messiness and inconsistency in how the PPACA uses the term “Exchange” or “established by the State.” The question is whether that messiness is sufficient to provide a foothold for broader intentionalist or purposivist arguments.
But that’s where good advocacy and persuasive writing comes in. Yes, judges approach these issues with certain presets or defaults. It’s then the job of the lawyers to shove them off those defaults, or demonstrate why the defaults don’t apply in a particular case. The only way to do that is to actively engage with counterarguments, take seriously the weaknesses in your own position, and address head-on your opponents’ strengths. By failing to do these things, lawyers actively exacerbate the problems of an ideologically polarized judiciary.
Here’s what I mean: Imagine a good-faith judge who, like me, is inclined toward a more pragmatic/intentionalist mode of statutory interpretation. First, she gets a brief along the lines of the Adler/Cannon amicus brief in Halbig. She reads it, and it sounds good—almost too good. It seems like the answer is obvious. Then she reads a responsive brief along the following lines:
The challengers are completely wrong and their reading of the statutory language is absurd. There’s just no evidence that’s what Congress could have possibly intended. To the contrary, here is how the statute actually works . . . .
The brief then goes on to spin a complete and equally convincing counter-narrative, but one that does not seriously engage the arguments set forth in the initial brief.
What is the good-faith judge to do? Since these two briefs talk past each other, neither of them really helps the judge decide which view is the correct view. Yes, she is given a lot of material from which she could construct a decision, but the briefs do not help her decide which decision to make or how to go about forming a cohesive answer to the interpretive question. Instead, she is left to rely on her pre-existing intuitions: Which of these stories—the literal textualist story or the looser intent-based story—seems more right to me? Which argument is convincing therefore has less to do with the parties’ presentations and more to do with the judge’s predisposition to accept or reject certain kinds of arguments.
Again, in cases involving well-worn issues on which the judge likely already has a substantive predisposition, these things may matter very little. But in many many cases judges will not have such a predisposition. Who would know going in that Justice Ginsburg, then-Chief Justice Rehnquist, and Justice Kennedy would all share a view on the application of contributory copyright infringement to online file-sharing programs? See MGM Studios, Inc. v. Grokster, Ltd, 545 U.S. 913 (2005) (Ginsburg, J., concurring). It seems like there’s some work for advocacy there.