Supreme Silence and Precedential Pragmatism: King v. Burwell and Statutory Interpretation in the Federal Courts of Appeals

68 Pages Posted: 16 Jun 2020

Date Written: 2019

Abstract

This Article studies statutory interpretation as it is practiced in the federal courts of appeal. Much of the academic commentary in this field focuses on the Supreme Court, which skews the debate and unduly polarizes the field. This Article investigates more broadly by looking at the seventy-two federal appellate cases that cite King v. Burwell in the two years after the Court issued its decision. In deciding that the words “established by the State” encompass a federal program, the Court in King reached a pragmatic and practical result based on statutory scheme and purpose at a fairly high level of generality. Cases that cite King might be expected to accept or reject this kind of purpose move, and to generally be more attentive to matters of interpretation.

The results presented here reveal a dynamic landscape in which federal appeals courts seem relatively uncommitted to ideological battles over interpretive principles, notwithstanding the relatively small number of opinions that contain rhetorical flourishes in this area. Courts freely pursue the best reading of statutory text through textual and purposive means: linguistic analysis of the words, contextual readings of multiple statutory provisions and analysis of the statutory scheme, and evidence of purpose gleaned from textual and extra-textual sources. While not pervasive, legislative history commonly guides interpretation. These results hold across cases where text and purpose conflict and where text and purpose are in harmony. In cases of conflict, the results also hold across cases that reach results primarily based on text and cases that reach results based primarily on purpose. Further, given the opportunity to weigh in on lower court statutory construction debates, the Supreme Court has remained silent. This Article concludes that it is normatively desirable that lower federal courts have not embraced the statutory construction battles in an all-encompassing way. The Article concludes with the caveat that this research should be revisited to assess the effect of Donald Trump’s appointments to the judiciary.

Keywords: statutory contruction, federal courts, jurisprudence

Suggested Citation

Cedrone, Michael, Supreme Silence and Precedential Pragmatism: King v. Burwell and Statutory Interpretation in the Federal Courts of Appeals (2019). Marquette Law Review, Vol. 103, No. 1, 2019, Available at SSRN: https://ssrn.com/abstract=3606695

Michael Cedrone (Contact Author)

Georgetown University Law Center

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