Should Judicial Opinions Be Read Like Statutes?

Abstract

Should judicial opinions be interpreted with an eye to their purpose, context, or the intent of their authors, or should interpreters focus solely on the ordinary meaning of the text? Opinions present the same sorts of interpretive puzzles as other legal texts, and yet they have been omitted from the debates over interpretive methodology that dominate the fields of constitutional and statutory interpretation. The omission is no accident: The Supreme Court has stated repeatedly—and with increasing frequency in recent years—that judicial opinions are not to be read like statutes. Yet neither courts nor commentators have explained why the principles that ground judges’ interpretations of other legal texts should not apply to texts judges themselves author.

This Article seeks to fill that gap. It provides a descriptive account of the courts’ use of what I call the “not-statutes trope”—a rhetorical device that invokes a mode of interpretation decidedly different from the textualism that characterizes most statutory interpretation today—and shows how the trope often is employed to finesse the demands of stare decisis. The Article then unpacks and analyzes the reasons that might support an interpretive distinction between judicial opinions and statutes, ultimately concluding that none of the proposed distinctions fully explains the not-statutes trope. The upshot is not that opinions should be parsed in a strictly textualist manner, however. There are good reasons to reject such an approach—reasons that bear a striking resemblance to arguments that have been levied against textualism in statutory interpretation. For textualist judges, then, the challenge is to explain why the mode of interpretation they apply to Congress’s handiwork feels so inappropriate when applied to their own writing.

Keywords: courts, statutory interpretation, stare decisis