Do as I Do, Not as I Say: An Empirical Investigation of Justice Scalia's Ordinary Meaning Method of Statutory Interpretation
Miranda O. McGowan
University of San Diego School of Law
March 26, 2008
San Diego Legal Studies Paper No. 08-015
Justice Scalia is one of the only American judges to have formulated a complete methodology of statutory interpretation. He contends that the rule of law requires "[s]tatutory construction to begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose." This article presents the results of a study that examined how Justice Scalia's practice of interpreting statutes compares with his theory. Based on a random sample of Justice Scalia's statutory interpretation dissents, this study uncovered the following. First, Justice Scalia entirely suspends textualism in about a quarter of the cases in the study's sample, because he is interpreting a statute that he believes grants the courts common law authority. Second, when Justice Scalia engages in textual analysis, more often than not his presumption that the ordinary meaning of words governs statutory meaning is overcome. He also consults an eclectic set of extrinsic materials - the same broad set of materials that other justices use, with the singular exception of legislative history. Third, purpose analysis lies at the core of Justice Scalia's method, and he considers a statute's purpose about as often as the Court as a whole does. Because Justice Scalia refuses to consult legislative materials, however, his purpose analysis frequently stems from the least formal source of all - his own sense of a statute's purpose or of absurd or anomalous results. This article concludes by observing that compared to ipse dixit purposivism, the evils of legislative history are grossly overstated.
Number of Pages in PDF File: 51
Keywords: Statutory interpretation, Jurisprudence, Courts, Legislation, Supreme Court
JEL Classification: K00, K1, K10working papers series
Date posted: March 28, 2008
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