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Statutory Interpretation on the Bench: a Survey of Forty-Two Judges on the Federal Courts of Appeals

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Statutory Interpretation on the Bench: a Survey of Forty-Two Judges on the Federal Courts of Appeals STATUTORY INTERPRETATION ON THE BENCH: A SURVEY OF FORTY-TWO JUDGES ON THE FEDERAL COURTS OF APPEALS Abbe R. Gluck & Richard A. Posner CONTENTS I. INTRODUCTION .................................................................................................................. 1300 II. OVERVIEW OF THE STUDY .............................................................................................. 1305 A. Methodology ..................................................................................................................... 1306 B. Summary of the Findings .............................................................................................. 1309 1. The Judge’s Generation ............................................................................................. 1311 2. The D.C. Circuit Is Different ................................................................................... 1312 3. Previous Experience Working in the Federal Government .................................. 1313 C. An Overarching Impression of Widespread Eclecticism ............................................ 1313 III. DO JUDGES REALLY READ THE (WHOLE) STATUTE AT THE OUTSET OF STATUTORY CASES? .................................................................................................... 1315 A. Text Versus Context ......................................................................................................... 1316 B. Dictionaries ..................................................................................................................... 1317 C. The Chevron Judges: The D.C. Circuit Begins in a Different Place from Everyone Else ......................................................................................................... 1319 IV. EXTRINSIC SOURCES: PURPOSE, LEGISLATIVE HISTORY, AND CANONS .......... 1321 A. Judges Did Not Wish to Label Themselves as Either Textualists or Purposivists .... 1322 B. Widespread Use of Legislative History ........................................................................ 1324 C. Almost All Judges Invoked Purpose .............................................................................. 1327 D. Canons of Construction .................................................................................................. 1327 1. Canons as Tools of Persuasion, Not Decision ........................................................ 1330 2. Canons as Useful Decision Tools, Planted in the Judge’s Mind ......................... 1330 3. Lenity and Avoidance Are Special .......................................................................... 1331 4. Canons in Opinions ................................................................................................... 1332 V. R ELATIONSHIP WITH THE LEGISLATURE AND ROLE OF THE JUDGE ................ 1334 A. Value of Understanding Congress ................................................................................. 1335 1. Modest Interventions ................................................................................................ 1337 B. Imposing Consistency on Statutes ................................................................................ 1338 1. Do Not Impose Consistency Where Congress Did Not ........................................ 1338 2. Imposing Consistency and Coherence Even Where Congress Has Not Is “Part of the . Judicial Function” ................................................................... 1339 C. Interpretation to Avoid Absurdity, to Advance Common Sense, or to Update ....... 1340 D. The Role of Eclecticism in the Judge-Congress Relationship — Echoes of an Intent-Based Approach ........................................................................... 1342 1298 2018] STATUTORY INTERPRETATION ON THE BENCH 1299 VI. RELATIONSHIP TO THE SUPREME COURT, INCLUDING THEORIES OF PRECEDENT ...................................................................... 1343 1. Judges Who Believe the Supreme Court Can and Does Dictate Statutory Interpretation Rules ................................................................................ 1344 2. Judges Who Believe the Supreme Court Cannot Dictate Statutory Interpretation Rules ................................................................................. 1345 3. Judges Who Believe the Supreme Court Could, but Has Not Yet, Dictated Interpretive Rules Because the Court Is Too Inconsistent .................................. 1346 4. Judges Do Not Want More Guidance from the Supreme Court .......................... 1347 VII. DEFERENCE TO AGENCIES AND CHEVRON SKEPTICISM ....................................... 1348 VIII. MORE ON THE JUDGES’ INDIVIDUAL APPROACHES ................................................. 1350 A. Judicial Approaches Adopted Incrementally, Case by Case ...................................... 1350 B. Role of Lawyers and Law Clerks................................................................................... 1351 C. Is Statutory Interpretation Different from Other Modes of Judicial Decisionmaking? .......................................................................................... 1352 IX. CONCLUSION ....................................................................................................................... 1352 APPENDIX: REPRESENTATIVE INTERVIEWS ....................................................................... 1355 A. The Most Text-Oriented Type of Judge ......................................................................... 1357 B. Older-Generation Judge/Legal Process Institutionalist ............................................. 1360 C. Post-Scalia Canonist/Moderate Textualist #1 ............................................................. 1362 D. Post-Scalia Canonist/Moderate Textualist #2 ............................................................. 1365 E. “Ex-Staffer”: Younger-Generation Judge with Some Capitol Hill Experience ....... 1369 F. D.C. Circuit Judge .......................................................................................................... 1371 STATUTORY INTERPRETATION ON THE BENCH: A SURVEY OF FORTY-TWO JUDGES ON THE FEDERAL COURTS OF APPEALS Abbe R. Gluck∗ & Richard A. Posner∗∗ This Article reports the results of a survey of a diverse group of forty-two federal appellate judges concerning their approaches to statutory interpretation. The study reveals important differences between their approaches and the approach that the Supreme Court purports to take. It also helps to substantiate the irrelevance of the enduring, but now- boring, textualism-versus-purposivism debate. None of the judges we interviewed was willing to associate himself or herself with “textualism” without qualification. All consult legislative history. Most eschew dictionaries. All utilize at least some canons of construction, but for reasons that range from “window dressing,” to the use of canons to assist in opinion writing, to a view that they are useful decision tools. Most of the judges we interviewed are not fans of Chevron, except for the judges on the D.C. Circuit, which hears the bulk of Chevron cases. Some of the judges interviewed believe that understanding Congress is important to a judge’s work, while others do not see how judges can use such understanding to decide cases. Most express doubt that the Supreme Court’s interpretive methodology binds the lower courts. The younger judges, who attended law school and practiced during the ascendance of textualism, are generally more formalist and accepting of the canons of construction, regardless of political affiliation. The older judges are less focused on canons, take a broader view of their delegated authority, and appear to grapple more with questions of judicial legitimacy. The approach that emerged most clearly from our interviews might be described as intentional eclecticism. Most of the judges we spoke to are willing to consider many different kinds of argument and evidence, and defend that approach as the only democratically legitimate one. Yet at the same time many observe a gap between how they actually decide cases and how they write opinions, a gap they attribute to the disconnect between the expectations of the public and the realities of judicial decisionmaking. I. INTRODUCTION The vast majority of statutory interpretation cases are resolved by the federal courts of appeals, not by the Supreme Court, even though the Supreme Court’s practice has received nearly all of the attention from academics and practitioners. In part due to this myopia, the Court and many academics have been mired for decades in a by-now boring ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ∗ Professor of Law and Faculty Director, Solomon Center for Health Law and Policy, Yale Law School. ∗∗ Former Judge of the U.S. Court of Appeals for the Seventh Circuit, currently President of Team Posner, Inc., a company that focuses on assisting pro se legal claimants. We are very grateful to the judges we interviewed for their candor and generosity. Special thanks also to Bill Eskridge, Patricia Goldrick, David Pozen, Amy Semet, participants at the Columbia Law School Faculty Workshop, and Yale Law School students Leslie Arffa, Miriam Becker-Cohen, Samir Doshi, Carter Greenberg, Yume Hoshijima, Julie Hutchinson, Philipp Kotlaba, Michael Morse, Max Siegel, and Matthew Sipe. 1300 2018] STATUTORY INTERPRETATION ON THE BENCH 1301 debate about “textualism” versus “purposivism.” That debate, while os- tensibly about the judge’s relationship to Congress and
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