Statutory Interpretation and the Rest of the Iceberg: Divergences Between the Lower Federal Courts and the Supreme Court

73 Pages Posted: 2 Mar 2018 Last revised: 10 Nov 2019

Date Written: March 6, 2018


This Article examines the methods of statutory interpretation used by the lower federal courts, especially the federal district courts, and compares those methods to the practices of the U.S. Supreme Court. This novel research reveals both similarities across courts and some striking differences. The research shows that some interpretive tools are highly overrepresented in the Supreme Court’s decisions while other tools are much more prevalent in the lower courts. Differences in prevalence persist even after accounting for the selection effect that stems from the Supreme Court’s discretionary docket. Another finding, based on a study of forty years of cases, is that all federal courts have shifted toward more textualist tools in recent decades but that the shift has been less pronounced as one moves down the judicial hierarchy.

The divergence between the interpretive practices of different federal courts has implications for both descriptive and normative accounts of statutory interpretation. On the descriptive side, most beliefs about statutory interpretation are based on the narrow and unrepresentative slice of judicial business conducted in the Supreme Court, and some of those beliefs turn out to be incorrect or incomplete as descriptions of statutory interpretation more generally. This research therefore substantially improves our understanding of the reality of judicial statutory interpretation. On the normative side, the results can advance scholarly and judicial debates over whether lower courts should do statutory interpretation differently than the Supreme Court and whether the Court’s interpretive methodology should be binding on lower courts. The Article’s findings also suggest that the teaching of statutory interpretation should take into account the distinctive practices of the lower courts, where the vast majority of legal work is done.

Keywords: statutory interpretation, legislation, federal courts, Supreme Court, district courts

Suggested Citation

Bruhl, Aaron-Andrew P., Statutory Interpretation and the Rest of the Iceberg: Divergences Between the Lower Federal Courts and the Supreme Court (March 6, 2018). Duke Law Journal, vol. 68, p. 1 (2018), Available at SSRN:

Aaron-Andrew P. Bruhl (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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