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

76 Pages Posted: 14 Mar 2018 Last revised: 17 May 2018

See all articles by Abbe R. Gluck

Abbe R. Gluck

Yale University - Law School

Richard A. Posner

University of Chicago Law School; National Bureau of Economic Research (NBER)

Date Written: March 9, 2018

Abstract

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.

Keywords: textualism, purposivism, statutory interpretation, legislation, judicial decisionmaking, chevron, administrative law

Suggested Citation

Gluck, Abbe R. and Posner, Richard A., Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals (March 9, 2018). Harvard Law Review, Vol. 131, No. 5, p. 1298, 2018; U of Chicago, Public Law Working Paper No. 673; Yale Law School, Public Law Research Paper No. 635. Available at SSRN: https://ssrn.com/abstract=3138249 or http://dx.doi.org/10.2139/ssrn.3138249

Abbe R. Gluck (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203 432 6703 (Phone)

Richard A. Posner

University of Chicago Law School ( email )

1111 E. 60th St.
LBQ 611
Chicago, IL 60637
United States
773-702-9608 (Phone)
773-702-0730 (Fax)

National Bureau of Economic Research (NBER)

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Cambridge, MA 02138
United States

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