Ethan Lazuk

Term Paper

3 December 2016

Judicial Inclinations and Statutory Interpretation:

Does the Textualism-Purposivism Debate Matter?

Introduction

Statutory Interpretation in Context

What characterizes policymaking in the United States is a disorderly and uninterrupted series

of adversarial episodes involving public or private actors vying for their distinct objectives. Central to

the policymaking process are episodes of statutory interpretation. The way in which the courts interpret

the legislative language in statutes can have significant implications for the implementation of policies

in society. Differential applications of public policy, furthermore, can impact both the balance of power

among the actors in the policymaking arena and the viability of their objectives. Given the potential

consequentiality that statutory interpretation has for federal, state, and local governance, the question

of how court justices interpret statutes continues to receive substantial attention from legal and policy

scholars. As a result, scholars have classified statutory interpretation into two main methodologies

called textualism and purposivism, and at the heart of the dispute between these methodologies is

what significance, if any, does a legislature’s intent for a statute have relative to that statute’s final

language (Spicer and Terry 1996). Is the plain meaning of a statute’s text when read

commonsensically in light of its policy context sufficiently determinative, as textualists claim? Or does

legislative intent concerning a statute, as interpreted from the policy context, legislative history, or
alternative avenues of information outside the four corners of the statute, provide a more accurate

rendering of the statute’s purpose, as purposivists claim?

The necessity of statutory interpretation in policymaking is not a foregone conclusion, however.

The Supremacy Clause of the Constitution states plainly that legislative responsibilities belong to

Congress, which theoretically eliminates any need for the courts regarding public policy except as a

check on unconstitutional legislation. Any assumption of legislative supremacy, however, presumes

that Congress will write statutes using as plain and clear of language as the wording contained in the

Supremacy Clause itself. When statutes are clear in their meaning, all challenges to the statute by

plaintiffs in the courts are futile naturally because judges understand their constitutional responsibility

to defer to the will of Congress concerning policy. Ambiguity in statutory language, however, is the

impetus for an adversarial episode. In cases when a plaintiff challenges the meaning of a statute in a

court, and that court’s justices cannot decipher the statutory language unambiguously, it then

becomes the justices’ constitutional imperative to estimate the statute’s meaning with a textualist or

purposive methodology.

Statutory interpretation is adversarial by nature; the legislators had their reasons for writing a

statute as they did, and the court’s justices had their purposes for interpreting the statute’s language

as they did. But the legislature’s reasons and court’s purposes are never one and the same because

they originate with two autonomous actors, which also happen to occupy distinct branches of

government. Meanwhile, statutory interpretation is not a straight trail from the legislature to the courts.

In between are at least two more actors: the plaintiff that brings the statute to the court, usually after

being adversely affected by the statute after its implementation, and the defendant, which is likely an

executive agency responsible for implementing the statute at the behest of the legislature and

probably the executive.

In instances where the plain meaning of a statute is clear, the point of contention concerns

either the constitutionality of the statute or the manner of its implementation by the responsible

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agency. Given the policy expertise of the agency in question, the court will almost certainly defer to its

method of implementation, and any attempts by the plaintiff to appeal the court’s ruling will probably

go nowhere. The situation becomes slightly more complex when an agency assumes responsibility for

a statute that contains ambiguous language. Again, however, the policy expertise of the agency leads

it to fill in the gaps in statutory language, and the courts will remain inclined to defer to the agency’s

interpretation of the statute. Yet, the door remains open in such examples for the plaintiff to carry the

case up to appellate courts and perhaps as high as the Supreme Court. Considering the differences

between textualist and purposive approaches to statutory interpretation, however, having the same

decision arise in multiple appellate courts or between the Supreme Court and lower courts is never

assured.

In light of the above discussion, this paper is divided into five sections. Section I looks at the

debate between textualism and purposivism. Section II examines factors regarding statutory

interpretation that are outside the realm of the textualism-purposivism debate. Section III considers

non-federal examples of statutory interpretation in state and local courts. Section IV is concerned with

how an agency might approach statutory interpretation and whether agency techniques differ from

those of judges. Lastly, Section V concludes by applying the findings in Section I, II, III, and IV to a real-

life example of statutory interpretation regarding Chief Justice Warren and welfare rights legislation.

The end goal of this paper, therefore, is to understand the roles of the purposivist and textualist

approaches to statutory interpretation across American policymaking. The conclusion reached,

however, is that what is perhaps most consequential for statutory interpretation is not the textualism-

purposivism debate but rather the inclinations of individual judges that ultimately transcend any one

interpretive approach.

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 Section I

Textualism-Purposivism Debate

The publicized contention between the textual and purposive approaches concerning statutory

interpretation in the courts only arose in the present era, specifically beginning in the 1980s whence

emerged the judicial philosophies of Chief Judge Frank Easterbrook of the Seventh Circuit Court and

Supreme Court Justice Antonin Scalia (Davis 2007, 987). While Scalia is the most widely

acknowledged textualist, his is but one of the several derivations of textualism. At the root of textualism

is the belief that judges should ascertain the meaning of any statute according to the most

commonsensical meaning of its text as read within an appropriate context (Davis 2007, 988). An

example of context for textualists could be the policy realm to which the statute applies, such as if the

policy-oriented definition of a word or phrase in a statute is different from its public meaning.

Meanwhile, a more ubiquitous contextual consideration stems from how textualists conceive of the

legislative process. From a textualist worldview, Congressional policymaking, for example, is viewed

as a process that generates statutes through political compromises among individual legislators. On

its own, the textualist conception of statutory production is not wholly revolutionary. In fact, it seems

thoroughly unsurprising. But the significance of the textualist perspective on policymaking is not so

much what it incorporates as what it lacks, which is legislative intent.

Instead of looking at the language of a statute and seeing the work of a unified legislative body

pursuing a particular policy intent, textualists see words resulting from policy compromises among

individual actors. According to the textualist perspective, therefore, to perceive the presence of a spirit

of legislative intent underlying the words of a statute is to presume unrealistically that the statute

came from a collective legislative will rather than the more realistic scenario of a compromise between

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conflicting policy preferences held by a choice group of proactive legislators. Moreover, textualists

would argue that the failure of a court to comprehend the realistic policymaking process is not

inconsequential. By ascribing legislative intent to a statute, a judge may ultimately be perceiving

“unenacted intentions” in the statutory language. The judge then makes a determination that not only

fails to clarify the statute’s meaning but also fabricates statutory components through de facto judicial

policymaking. Thus, the court’s ruling contains statutory elements that did originate with the legislature

but nonetheless become binding laws.

A core tenet of textualist belief is that the language of a statute has legitimacy because, when

it was still a bill, every member of the legislature, or at least a quorum, considered the language

verbatim during a vote. The fact that textualists dismiss the possibility of collective legislative intent

and instead see a statute’s language as the result of one or more compromises between individual

lawmakers has no bearing on legitimacy. Whether every lawmaker read all or any of the language of

the bill before voting on it is an intriguing question but one devoid of constitutional significance from

a judicial perspective. What is more, given the constitutional reality of legislative supremacy, the tacit

acknowledgment and approval of a statute’s language from at least a plurality of legislators is a key

impetus for the textualist approach. It is for the same reason that textualists look upon the act of

judicial legislating as the result of false impressions of legislative intent in the spirit rather than the

language of a statute as particularly egregious.

Likewise, distasteful in the eyes of textualists is the use of legislative history by judges who are

seeking to piece together legislative intent. The reason legislative history is problematic from the

textualist perspective is not so much that its information, which is nonetheless relevant to the

policymaking process behind a particular statute, comes from extraneous sources instead of from the

language of the statute itself. Neither are textualists most perturbed by the fact that legislative history

originates chiefly with but a handful of legislators, who in all likelihood are the previous proponents or

opponents of the bill and are responsible for the compromises that led to its final language. More

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precisely, it is the fact that legislative history contains policy-related viewpoints that, unlike the statute

itself, were never considered by the legislative body at large. To the traditional textualist, the utility of

legislative history for statutory interpretation is outweighed by its constitutional illegitimacy. Despite

being a tenet of traditional textualism, however, the avoidance of legislative history is not a universal

paradigm for all textualists. Specifically, a class of new textualists has kept alive the fundamentals of

textualism while embracing legislative history in varying capacities.

On a spectrum of textualist philosophy, Justice Scalia occupies territory near the cusp of where

traditional and new textualism meet. On the other hand, Justice Samuel Alito, a contemporary of

Scalia’s, would be decidedly a new textualist. Both Scalia and Alito are committed to interpreting policy

compromises in the public meaning of statutory language as opposed to looking for any transcendent

spirit of collective legislative intent, for example. Where these justices’ approaches to statutory

interpretation deviate from one other, however, concerns the levels of commitment each ascribes to

using legislative history to resolve ambiguities in statutory language. Alito’s embrace of the utility of

legislative history contrasts with Scalia’s wavering reluctance. Yet, the varying levels of reliance on

legislative history by different textualist judges shows two things. One of which is that textualism is not

an inherently conservative approach to statutory interpretation given its flexibility regarding legislative

history. Secondly, the distinctions between textualism and purposivism go beyond disputes over the

authenticity or levels of appropriate use of legislative history but extend to deeper differences in how

both sides conceive of policymaking.

There are several names for the purposive approach to statutory interpretation. Some

scholars call it the purposes and objectives approach (Gifford, Reynolds and Murad 2012, 221).

Others deem it the intentionalist approach (Spicer and Terry 1996, 40). But no matter what

terminology one uses, the approach is much the same, which is to interpret a statute by discerning

the goals the legislature had for passing the act in the first place. Accordingly, purposivist thought

argues that what a statute says and what it means are exclusive concepts. In other words, statutes

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are not so much final products as formal presentations of legislative intent. Sometimes, a statute’s

plain meaning is plain enough to remove doubt about what ends the legislature sought to realize.

Other times, however, ambiguities in statutes invite judicial interpretation. The textualist would seek

clarification within the four corners of the statute, and any outside sources of elucidation would

extend no further than consideration of the policy context, use of a dictionary, and perhaps a glance

at one or two sources of legislative history if desperation called for it. The purposivist, meanwhile,

owes no loyalty to the verbatim text of the statute, especially if more thorough explanations of a

statute’s ambiguous terms or passages exist in one or more sources of legislative history. After all, if

a legislature has clear intentions for passing an act but relates those intentions with convoluted

language, is it no appropriate for a judge to interpret that language using records of actual legislative

deliberation as opposed to a quixotic attempt to find clear meaning in cloudy writing? A purposivist

would certainly argue as much.

But from the textualist perspective, two concerns follow. The first concern is over the legitimacy

of legislative history. Ultimately, what qualifies as legislative history can be any internal record of

activity by legislators or staff members concerning the act that became the statute in question. No

part of the sometimes large body of sources that comprise the legislative history for a particular

statute, however, is guaranteed to have anyone besides the person who authored the statute to have

considered it. Thus, unlike the act itself, which becomes legitimate because of its acknowledgment by

at least the quorum of legislators that vote on it, legislative history has no such legitimacy. To use

sources of legislative history to configure the policy intentions of the legislature as a whole, therefore,

is to bypass legislative authority. Relatedly, the second textualist concern for the purposive approach

pertains to the inherent subjectivity involved when a judge attempts to read the collective minds of a

body of lawmakers based on a committee report, transcript of a floor debate, recording of expert

testimony, or any other source of legislative history that contains the viewpoints of a handful or fewer

of legislators or staff.

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 Textualism proceeded purposivism, so it makes sense that the former would be an ideology

with tenets built upon the faults its proponents perceived in the latter approach. Some scholars, in

fact, describe purposivism as an age-old approach to statutory interpretation widely relied on in the

courts. That is, until the arrival of Scalia and the birth of a textualist counterargument in the 1980s.

The legacy of purposivism is largely a contrived one, however, and thus the reign of the purposivist

approach is not as long or ubiquitous as some scholars suggest. In other words, the majority of

American legal history is composed by examples of common law. Stemming from early colonial society,

American common law incorporated European traditions for governance and morality infused with

local cultural traits, and its institutionalized supremacy spanned from colonial times through

independence, industrialization, and well into the twentieth century. It was not until the New Deal Era

of President Franklin Roosevelt and the accompanying rise of a federal administrative state in the

1930s that interpreting statutes became a main role of the courts, thus giving new weight to

considerations over how best to perform statutory interpretation, like by using a purposive approach

(Intent, Clear Statements, and the Common Law: Statutory Interpretation in the Supreme Court 1982,

892).

The debate between textualism and purposivism, therefore, is not characterized by a time-

honored approach on one side and a recent countermovement to that approach on the other side.

Instead, textualism and purposivism are two approaches, both still in their developmental stages,

meant to address the relatively recent emergence of statutory interpretation as a consequential

phenomenon within the realm of American policymaking.

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 Section II

Additional Issues for Statutory Interpretation

There are, however, scholars for whom the debate between textualism and purposivism is a

non-issue, or at least a side issue, relative to another, more pressing aspect of statutory interpretation.

Writing in the Harvard Law Review, Nicholas Quinn Rosenkranz argues that what should matter for a

judge most of all is not whether he or she is looking for clear meaning or legislative intent but if the

interpretive strategy is fundamentally constitutional in the first place (Rosenkranz 2002, 2098). He

writes, “when considering the constitutional status of a rule of interpretation, the rubber does not hit

the road until one asks: could Congress implement or abrogate the rule?” [emphasis in original]

(Rosenkranz 2002, 2099). What Rosenkranz is referring to by “rule” is not any particular part of a

given statute but rather the approach used to resolve ambiguities in that statute, assuming the

approach has one or more identifiable consistencies. In other words, Rosenkranz proposes to

determine the constitutionality of an interpretational approach for a statute based on whether the

legislature could mandate that approach in the language of the act it passes. Could Congress, for

example, write into the language of an act that upon becoming a statute, any ambiguities in the

language should be resolved using (or avoiding) legislative history, thus, in essence, instructing the

courts how to rule?

Upon examining the rationale behind Rosenkranz’ thesis for the constitutionality of

approaches to statutory interpretation, however, light is shone on a more general thesis underlying his

work. Rosenkranz remarks, for example, that “coherent and consistent codes” for dealing with

statutory interpretation are lacking in the courts because “these are notoriously hard for judges to

develop case by case” (Rosenkranz 2002, 2089). It is also for the same reason that most canons of

construction face a contrary example, thus leaving judges with “no intelligible, generally accepted, and

consistently applied theory of statutory interpretation” (Rosenkranz 2002, 2086). Rosenkranz

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references an earlier article from the Harvard Law Review written by William N. Eskridge, Jr. and Philip

P. Frickey, in which they argue that:

The usefulness of the canons … does not depend upon the Court’s choosing the “best” canons

for each proposition. Instead, the canons may be understood as conventions, similar to driving

a car on the right-hand side of the road; often it is not as important to choose the best

convention as it is to choose on convention, and stick to it. (Rosenkranz 2002, 2088)

By supporting the view of Eskridge and Frickey, Rosenkranz reveals that his focused

argument—which is for legislatures to enter the domain of statutory interpretation by including

instructions for how courts should address ambiguities in statutory language, which judges should

follow so long as proposing the particular approach is within Congress’ enumerated constitutional

powers—is but a specific example of how to actualize Rosenkranz’ larger preference for more

consistency, and ultimately predictability, from judges when interpreting statutes. In other words,

whether the tenets of textualist thought are correcter than those of purposivist thought or vice versa

is of lesser consequence than whether the courts consistently utilize one of the two approaches. After

all, if this were the case, it would allow legislators to write acts with an eye toward how the courts might

perceive the language. A known preference for textualism in the courts, for example, might inspire

legislators to focus less on compiling sources of legislative history and instead devote more energy to

writing lengthy and explicitly defined key terms and ideas in an act. While knowing the courts to favor

purposivism, on the other hand, may lead legislators to write concise acts but also maintain coherent

and comprehensive sources of legislative history.

It is also possible that an argument for consistency in statutory interpretation is not driven by

a preference for predictability so much as a desire to eliminate episodes of judicial subjectivity.

Instructing judges on how to interpret ambiguous language would inevitably minimize the opportunities

for them to inject their partisan feelings into rulings. On the topic of bias, Richard H. Fallon, Jr.,

Professor of Constitutional Law at Harvard Law School, explains how a leading argument for the

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textualist approach is that it eliminates the inherent policy biases of judges who rely on purposivism.

“According to textualists,” writes Fallon, “purpose-based inquiries invite courts to smuggle in their

personal preferences by imputing their views to the lawmaking authority” (Richard H. Fallon 2014,

687). Courts are “faithful agents,” therefore, when judges enforce “the fair meaning of the words that

the legislature enacted.” After evaluating the merits of this key textualist claim, however, Fallon found

it wanting.

The fault that Fallon identified is not with the argument that a purposivist approach is

subjective but rather that a textualist one is objective. Fallon writes textualists emphasize the

semantic context of statutes while purposivists care more about its policy context. But both of the

approaches to statutory interpretation share a concern for reasonableness (Richard H. Fallon 2014,

685). For purposivists, what guides the meaning of a statute are the hypothetical policy intentions of

reasonable legislators with informed viewpoints but moderate partisan interests. Although, the

characteristics of a reasonable legislator are conceptions harvested from a judge’s personal

worldview. Professional excellence and legal expertise aside, any judge is ultimately incapable of

knowing the true intent of a legislature or the entire context of a policy. But for all their protestations,

textualists are equally handicapped by their imaginations. Only in their case, it is not a reasonable

legislator that is of concern but a reasonable person, and, more specifically, how that person would

comprehend a statute’s language in context. As Fallon notes, “the construct of a reasonable

interpreter is inherently value laden” (685). Considering, therefore, that “both textualist and

purposivist theories require partly value-based decision making,” Fallon explains, “there is no escaping

the conclusion that good judging requires good judgment” (685). In other words, Fallon’s argument is

that of a realist arguing the point that it is not the use of a textualist or purposivist approach that

ultimately determines the merit of a judge’s interpretation of a statute but sound judgment alone.

A common theme thus emerges from the views of Rosenkranz and Fallon, which is that the

ideal approach to statutory interpretation is one that ultimately transcends the textualist-purposivist

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debate. Whether one prefers consistency by way of constitutionality and legislative guidance, as

Rosenkranz does, or merely reasonable judgment, as Fallon does, both arguments hold textualism

and purposivism in the same regard. Which is to say that, in the context of statutory interpretation,

these approaches are marginal factors at best and inconsequential ones at worst. Rather, it is the

personal inclinations of a judge, and those alone, which inform his or her verdict on statutory

ambiguity. But that leaves the question of what ultimately guides those inclinations?

Based on the work of Lawrence M. Solan and Jill C. Anderson, cognitive bias is another factor

that can influence the inclinations of judges concerning statutory interpretation. It is also interesting

that both scholars focus on cognitive bias in the context of linguistics. For her part, Anderson looks at

the role cognitive bias can play in influencing the meaning a judge might ascribe to “opaque” verbs

that are so common to legal writing (Anderson 2014, 1522). Words like “intend, endeavor, and regard”

are examples of verbs common to statutory language but that have indefinite connotations. The

problem, she explains, is that in everyday speech, a listener ascribes a context to opaque verbs rather

naturally, but when in the process of statutory interpretation, a judge is poring over the written

meanings of these verbs, he or she is likely to bypass the subtle context. How that judge perceives the

meaning of an opaque verb in a statute can thus alter the meaning of entire sentences and ultimately

affect the implementation of a law.

The matter of cognitive bias plays a role, therefore, in how a judge uses the ambiguity of certain

opaque verbs to adjust the original intent of the statute to comply with his or her broad or narrow

interpretation. At the source of cognitive bias in these instances, however, is likely not a purposivist or

textualist preference. And the reason this is the case is because Anderson does not consider the

particular approach to statutory interpretation as having any role in resolving such instances where a

judge may assign a hyperbolic or diminutive meaning to an opaque verb. “Noticing and correcting

these misreadings,” she writes, “does not force us to take sides in any debate over theoretical

approaches to statutory interpretation,” to which she lists “textualism versus purposivism” as an

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example (Anderson 2014, 1526). Yet, Anderson goes one step further, explaining how her main

contention “is that many clashes among theories of statutory construction are simply irrelevant to a

significant class of problems that legal actors regularly confront” (1526). Instead, the root of the

problem in statutory interpretation is that too often literal meanings are ascribed by judges to the

language of statutes, perhaps with the aid of dictionaries, at the expense of context, which tells the

truer tale of the law’s purpose. Like other examples from Rosenkranz and Fallon, therefore, Anderson’s

conception of ideal statutory interpretation transcends the textualism-purposivism debate and is

stems instead from the use of context to infer the meaning from opaque verbs or other sources of

ambiguity in statutes.

For his part, Lawrence M. Solan’s research deals specifically with instances when legislators,

while writing the language of acts, have committed linguistic mistakes that then become law in

statutes. When someone challenges a statute containing a “linguistic accident” in court, therefore, a

judge presiding over the case is confronted with a moral dilemma (Solan 2011, 1033). Assuming the

judge spots the error in the statute’s language, should he or she honor the incorrect language as

binding law and accept the statute’s clear meaning or defer to the policy context in which the law was

conceived and issue a ruling that corrects the error. The decision is much harder to make for a

textualist judge than a purposivist, for the latter could easily find justification in legislative history, but

so too could the textualist. After all, textualists refrain from using legislative history except when

necessary, and even then they would consume it in limited quantities. But the question remaining is

whether a textualist judge would view a linguistic mistake by the legislature in a statute as cause

enough for legislative history to qualify as a source of statutory interpretation. For his part, Solan holds

a clear position that in such a case of a linguistic error, “reliance on literal meaning [is] tantamount to

lying” (Solan 2011, 1033). In other words, for a judge to refrain from correcting a clear mistake in the

language of a statute in order to abide by the textualist preference for siding with the statute’s clear

meaning is borderline immoral. Even more egregious, however, are “instances in which interpreters

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take advantage of linguistic accident to license arguments that flout the intent or purpose of a law”

(1033). It is, therefore, an example of cognitive bias for a judge to assert that his or her commitment

to textualism was the rationale for ruling on a statute that he or she knew to contain a linguistic error

if that ruling ultimately supports the judge’s policy preference. In all likelihood, such a mistake would

be unintended and stem from the judge’s subconscious mind. But what this example demonstrates,

nonetheless, is how cognitive bias could be a factor in influencing the inclinations of a judge.

Conversely, if the same judge was to suppress his or her policy preference by using evidence from

legislative history to correct the statute’s linguistic error, morality could be said to be the leading factor

behind such an inclination.

Solan’s argument might so far seem like an endorsement of purposivism. However, his full

argument elucidates support for the same theme exhibited in the work of Rosenkranz and Fallon: that

any ideal approach to statutory interpretation transcends the debate between textualism and

purposivism. Concerning the purposivist approach, Solan argues how a “recourse to [legislative]

purpose, contrary to the views of many, actually reduces the range of judicial discretion, and that those

who associate purposive interpretation with judicial activism appear to be subject to a cognitive bias—

the conjunction fallacy” (Solan 2011, 1033). More explicitly, the conjunction fallacy concerns a judge’s

denial of the fact that “the intersection of two considerations (in this case [statutory] language and

[legislative] purpose) can be no greater than either of the considerations individually (1047).

Thus, there is no magic formula for how much textualism or purposivism should be used by a

judge to interpret a statute. In fact, the correct interpretation of ambiguous statutory language is not

contingent on any particular interpretive approach but rather on the judge’s objective perceptions of

the law according to the sources that most usefully indicate statutory meaning. Determinations of the

usefulness of textualism or purposivism for interpreting statutes thus come on a case-by-case basis

according to what evidence is available. As Solan says, “the legislature’s purpose is not always

obvious,” and the ability of legislators to anticipate all future scenarios or conditions that may apply to

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a statute is not a foregone conclusion (Solan 2011, 1046). Solan records Scalia’s remark that “the

purpose of a statute includes not only what it sets out to change, but also what it resolves to leave

alone.” It is thus a matter for judges to decide if omission from a statute is the result of deliberate

exclusion or insufficient foresight by the legislature. But such a determination is not guaranteed by

textualism or purposivism but rather by where in the language of the statute or its legislative history

the most reasonable answer is found.

Solan’s chief concern is “that when language is either uncertain or clearly mistaken, it is simply

wrong to use the uncertainty to interpret a law in a manner that thwarts the communicative intent of

the law” (Solan 2011, 1046). If a textualist judge rules using a reasonable understanding of a statute’s

language, for example, when the clearest communicative intent of the legislature was, instead,

available in the legislative history related to the statute, that judge’s inclinations could be said to be

influenced by either cognitive bias or immorality. Spurred by cognitive bias, a judge would overlook the

legislature’s communicative intent because of myopia drove by dogmatic textualist beliefs. On the

other hand, immorality as a factor for the judge’s inclinations involves the same scenario, but instead

of overlooking the communicative intent of the legislature, the judge consciously ignores to generate

a preferred policy outcome. Meanwhile, a reversed scenario could involve a purposive judge, whose

inclinations result from cognitive bias or immorality, who issues a verdict based on legislative history

when the statute’s language is really the better source of interpretation for legislature’s intent. In either

scenario, however, the guiding principle behind ideal statutory interpretation is the judge’s moral

inclinations to bypass the textualist-purposivist debate to rule, instead, based on the most accurate

indication of the communicative intent of the legislature, whether it comes from the statute’s language

or its relevant legislative history, and whether or not the result supports the judge’s policy preference.

The arguments of Rosenkranz, Fallon, Anderson, and Solan are dissimilar regarding the

specific aspects of statutory interpretation focused on, but based on their respective viewpoints, these

scholars agree on the point that what drives ideal interpretations of statutes is not the use of a

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textualist or purposivist approach but rather some principle that transcends the textualism-

purposivism debate entirely. Consistency, reasonableness, context, and morality are the four examples

of transcendent principles discussed in this section. It is no coincidence, however, that each of these

principles begins with a judge’s personal commitment to produce legal rulings that are void of his or

her policy preferences and instead based solely on the best and most objective appraisal of the

legislature’s explicit directives and implicit intentions irrespective of where in the language of statutory

text or the sources of legislative history these appraisals come from.

It is the conclusion of this paper, therefore, that to interpret a legislature’s implicit intent for a

statute, a judge must not risk interjecting his or her opinion on policy by resorting straightaway to an

estimation of how a reasonable person would understand a statute’s clear meaning or what objective

a reasonable legislator might hold. Instead, a judge’s process for clarifying ambiguous statutory

language should include textualist and purposivist approaches. In other words, it is only after

objectively considering both the language of the statute in light of the policy context and the pertinent

legislative history with attention paid to the authority of its sources that a judge is then eligible to

credibly report his or her finding.

Section III

Non-Federal Statutory Interpretation in State and Local Courts

Most of the information in this paper so far has come from sources concerned with statutory

interpretation in Federal courts. As a result, mentions of the legislature almost invariably refer to

Congress, while talk of courts is often regarding the Supreme Court. For example, the plurality of

sources available on textualism focus on, reference, or are written by Supreme Court Justice Antonin

Scalia. It is, thus, worth a moment to look at the nature of statutory interpretation in the state and local

courts.

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 There are similarities between federal and state and local courts, but there are differences, as

well. And there is perhaps no bigger difference than how judges come to be employed. The President

of the United States nominates federal judges for their positions, but it takes confirmation from the

Senate for a judicial appointment to take effect. The nature of appointments, however, can be

contentious and partisan. Following the death of Justice Scalia, for example, President Barack Obama,

a Democrat, nominated Merrick Garland, Chief Judge of the Court of Appeals for the District of

Columbia Circuit, in 2016 as an Associate Justice. The Republican-controlled Senate, however, refused

to vote or even hold a hearing on Merrick’s confirmation.

Unlike the federal appointment process, state and local judges are elected (Bruhl and Leib

2012, 1217). Law Professors Aaron-Andrew P. Bruhl and Ethan J. Leib investigated how the electoral

variable might impact statutory interpretation at the state level. In their study, Bruhl and Leib report

on two divergent models of thought concerning statutory interpretation and Federalism (1215). A

unified model argues that appointed and elected judges “are supposed to approach statutory text in

identical ways. A contrary view says, instead, “that elected judges and appointed judges should

actually interpret statutes differently.” As the authors point out, the majority of judges in the United

States operate outside of the federal judiciary, which means differences in the approaches to statutory

interpretation between federal and state courts could have dramatic implications for lawmaking in

America that are currently underrepresented in the academic literature (1216). As Bruhl and Leib point

out, “much thinking on statutory interpretation is based on the factual predicate that ‘the statute is

passed by a legislature that is democratically elected, and it is interpreted by a court that is not’”

(1217). All of that changes, however, when dealing with state or local courts.

The conventional wisdom among legal scholars is that state and local judges should follow the

unified model and address statutory language with deference to the legislative will (Bruhl and Leib

2012, 1215). However, is such deference merited when the judges are not beholden to political

appointments but rather to the voters of their state or local district? According to Bruhl and Leib, “when

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the judge is popularly elected and has a direct link to the people, the logic of legislative supremacy

and judicial subordination comes under strain” (1219). And at least one theory, called majoritarian

judicial review, supports this thought (1218). Proponents of the majoritarian viewpoint envision

“elected judges as conduits for implementing the public’s views of constitutional meaning” (1218).

Under the majoritarian arrangement, courts are still beholden to the federal and state constitutions,

but in cases dealing with common law or statutory interpretation, although the legislative will matters,

so too does the will of public opinion have validity, perhaps even to a significant degree. But the

question remains “whether judicial elections confer the sort of democratic legitimacy that might

warrant disrupting a presumptively unified role” for state-court judges (1231). If the answer is yes,

then state judges become a de facto second-stage legislature tasked with polishing the state’s existing

laws whenever someone challenges a statute in the courts. Bruhl and Leib, however, recognize a

chasm between the levels of democratic legitimacy legislative and judicial elections convey. “Judicial

elections,” they explain, “tend not to involve the kind of public participation that we usually associate

with democratically meaningful contests,” and they identify one reason for the disparity in public

participation as a problem of “voter ignorance” concerning the roles and credentials of judges (1231-

1232).

Additional facts that diminish legitimacy for the majoritarian theory are that only about one-

third of state judges participate in partisan elections at all, while other electoral institutions include

retention and nonpartisan elections where the incumbency advantage for judges can far surpass that

of legislators (Bruhl and Leib 2012, 1232-1233). In light of these facts, the authors eventually turn

their observations into a definitive verdict, explaining that “given the public’s historically large-scale

indifference to judicial elections, it is hard to argue that they matter enough to justify a departure from

a unified approach to statutory interpretation” (1232). What remains undiscussed in the work of Bruhl

and Leib, however, is the matter of accountability. While they demonstrate that state-level judicial

elections are a poor barometer for the levels of public support for a judge, they fail to mention how the

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election process, nonetheless, enables the public to have oversight over all non-federal judicial

decisions. True, the minutiae of state policymaking disputes are likely to go unnoticed by the public,

but when controversial and publicized cases arise in state courts, there is a significant possibility for

public recourse over an unfavorable decision. Members of the U.S. Supreme Court, as lifetime

appointees, are isolated from public pressure. However, members of state supreme courts potentially

risk their careers by getting on the wrong side of public opinion. There is a likelihood that cognitive

bias for one’s self-preservation is, therefore, a plausible factor influencing the inclinations of state

judges concerning statutory interpretation.

Writing in the University of Pennsylvania Law Review, Ethan J. Leib again addresses issues

concerning non-federal statutory interpretation. Only this time, his focus is local courts. Despite being

the most likely places that average citizens will come into contact with the judiciary, local courts are

ignored in scholarship on statutory interpretation far more than federal or even state courts (Leib

2013, 898-899). However, “what [local judges] do in their courtrooms when applying statutes,” writes

Leib, “is probably more relevant to citizens’ sense of the legitimacy of our legal system and rule of law

than the vast majority of the Supreme Court’s business at One First Street” (900). There is a potential

factor influencing the inclinations of local judges concerning statutory language, however, which is

wholly unique and thus worthy of consideration. This factor is localized agendas (ibid), and, more

specifically, how these agendas might influence the manner in which a local judge implements a state

statute.

Assuming the unified model, which conforms the behavioral norms of state and federal judges,

the textualism-purposivism debate is likely relevant to state judges. The added electoral factor for

state judges, however, likely diminishes the rigidity with which they might adopt interpretive

approaches for statutes, especially compared with their federal colleagues who are appointed based

largely on their known judicial philosophies. On the other hand, for local judges, the electoral factor

beholds them to local agendas and public opinion for reelection. But local judges, also, are members

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of the state government, which means they face, yet, an additional form of oversight. Given the levels

of scrutiny on local courtrooms, it is perhaps less likely that a local judge would interpret a statute

based on a purposivist or textualist philosophy than he or she would hold inclinations toward the

statute based on a cognitive bias for self-preservation, locally focused loyalties, as well as state

interests.

Although Bruhl and Leib argued for the unified model during their discussion on state judges,

Leib changes direction concerning local judges. “The accountability available for local judicial

performance, combined with the possibility for careful state supervision of ‘localist’ judicial action,

supports giving local courts more discretion in interpreting both local ordinances and state statutes”

(Leib 2013, 903). He also mentions support for “intrastate judicial federalism,” an arrangement in

which local judges hold dialogues with non-local judges and policymakers as a means to promoting

“the development of statewide policy” (ibid). Such legal homogeneity across a given state, however, is

yet another factor influencing the inclinations of local judges concerning statutory interpretation, in

turn diminishing the relevance of the textualism-purposivism debate.

Across all three layers of judicial power, therefore, the debate over textualism and purposivism

is revealed to be mostly or totally inconsequential compared to other transcendent factors that

influence the inclinations of judges when interpreting statutes. What appears to be more relevant to

statutory interpretation than any particular interpretive approach, however, is the influence of cognitive

bias. Although by no means a dead certainty, the threat that a judge’s cognitive bias may affect

statutory interpretation is real. Therefore, a conclusion of this paper is that, rather than a dogged

textualist or purposivist belief, it is a preference for either a certain form of policy implementation, at

the federal level, or self-preservation stemming from electoral concerns or localized commitments, at

the state or local levels, that has the most potential to influence how a judge will read and interpret a

statute.

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 Section IV

An Agency’s Role in Statutory Interpretation

Courts are perhaps the leading source of statutory interpretation in American law, but what

the words legislators write in acts that become statutes are, also, read by people other than judges. In

fact, it is a lawsuit that determines whether or not a judge cares about statutory language. Absent a

challenge to the meaning of a statute, the courts never enter into the equation. Aside from judges,

therefore, the people who read and interpret legislative statutes often work at government agencies

tasked with implementing the newly passed or amended law. Agency interpretation of statutes is thus

a significant aspect of policymaking, and it comes with a unique set of circumstances. The question of

how an agency interprets a statute, and whether interpretive approaches like textualism and

purposivism are relevant to the process, is the focus of an article by Christopher Walker.

Of concern to Walker is the notion of a principal-agent relationship between a legislature and

an agency (Walker 2015, 1001). After all, once a legislature passes an act, usually via executive

signature, the implementation phase for the proceeding statute is beyond the power and resources of

the legislature to perform. The duty to implement part or all of the statute thus often falls on the

shoulders of an executive agency. This scenario is only viable, however, if the legislature, which is the

principal, can rely on the agency to be a faithful agent and implement the statute as the legislature

intended. Where this principal-agent relationship becomes problematic, however, is in the fact that

the agency has only the language of the statute as its sole indication of legislative intent. Absent total

clear meaning in the statute, the agency is thus responsible for resolving all instances of ambiguous

language. In other words, the agency must perform statutory interpretation.

Walker points out, however, that “asymmetries” between legislatures and agencies exist not

only regarding information and expertise but, also, policy preferences, an arrangement Walker

describes as the “dueling principles problem.” The policy preference of an agency, however, likely

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extends from the government executive’s preference, assuming the agency belongs to the executive

branch. At the federal level, for example, an agency like the Food and Drug Administration would be

beholden to Congress, the author of the statute, and, also, to the President, who is the overseer of the

executive branch of which the FDA is a part. And given how voters’ have a tendency to elect divided

governments, the push and pull of legislative-executive partisan discord could further convolute how

an agency proceeds to implement what is potentially already ambiguous statutory language. Aside

from the policy preferences of an executive and legislature, an agency has its superior subject-matter

expertise to consider. Knowing the intricacies of whatever policy area that a statute addresses better

than the legislature does, would challenge an agency with the inclination to interpret the ambiguity or

even clear meaning of a statute’s language in a manner that is either divergent from the legislative

will or simply beyond legislative comprehension. Walker identifies this arrangement as a “built-in

control problem” of bureaucracy, in which the “agent has expertise and other information that are

largely unavailable to the principal, and this asymmetry makes it difficult for the principal to ensure

that his own interests are being faithfully pursued by the agent” (Walker 2015, 1003).

According to Peter L. Strauss, however, there is a point of solace regarding the risk of an agency

insubordinately interpreting a statute contrary to the legislative will. The essence of Strauss’ argument

“is that agencies have a direct relationship with Congress that gives them insights into legislative

purposes and meaning” (Walker 2015, 1035). The critical resources that an agency often needs to

function, moreover, are contingent upon a productive relationship with the legislature that grants said

resources. These factors not only build a case against the rogue statutory interpretation of an agency,

but they also highlight why legislators might feel comfortable delegating authority to the agency to

implement vague statutory language according to the agency’s subject-matter expertise. Strauss, for

example, has argued “for a more purposivist approach to agency interpretation based on comparative

institutional expertise” (1035). Supporting Strauss’ viewpoint are the results of an extensive survey of

how Congressional legislators view statutory interpretation done by Lisa Schultz Bressman and Abbe

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R. Gluck, who reported that 94 percent of congressional drafters “indicated that a purpose of

legislative history is to shape the way agencies interpret statutory ambiguities” (Gluck and Bressman

2013). There is also the Supreme Court’s ruling in Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc. (1984). According to Michel W. Spicer and Larry D. Terry, Chevron “arguably has created

a new world—a world that permits administrative agencies and public administrators to exercise

greater discretionary authority and power in the realm of statutory interpretation” (Spicer and Terry

1996, 39). The language in the Chevron ruling, which was principally authored by Justice Paul

Stephens, appears to affirm the view of Spicer and Terry. The introduction to Chevron explains that at

key context at issue is when a legislature has made no determination on a contested issue of a statute,

and an agency has instead made the determination, “the question for the court is whether the agency’s

answer is based on a permissible construction of the statute” (Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc. 1984, 838). Writing the majority opinion, Stevens elaborates on the

context for the decision that leads Spicer and Terry to describe the verdict as the start of a new world

for statutory interpretation:

First, always, is the question whether Congress has directly spoken to the precise question at

issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as

the agency, must give effect to the unambiguously expressed intent of Congress. If, however,

the court determines Congress has not directly addressed the precise question at issue, the

court does not simply impose its own construction on the statute, as would be necessary in the

absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with

respect to the specific issue, the question for the court is whether the agency's answer is based

on a permissible construction of the statute. / The power of an administrative agency to

administer a congressionally created . . . program necessarily requires the formulation of policy

and the making of rules to fill any gap left, implicitly or explicitly, by Congress. / Morton v. Ruiz,

415 U.S. 199, 231 (1974). If Congress has explicitly left a gap for the agency to fill, there is an

express delegation of authority to the agency to elucidate a specific provision of the statute by

regulation. (842-844)

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In particular, the final sentence in this excerpt from Stevens’ opinion in Chevron seems to endorse

purposivism and, perhaps, supremacy for agency statutory interpretation. But that leaves a remaining

question, which is why an agency that is likely headed by a political appointee and staffed by unelected

personnel has legitimacy to expound on laws at the same time it implements them, and is even

encouraged by the legislature, in some cases, to follow its policy preference regarding statutory

interpretation, while a federal judge is expected to refrain from interjecting his or her policy preference

when ruling on a statute?

Perhaps the distinction between how federal judges and agencies should treat their policy

preferences when interpreting statutes correlates with their respective levels of participation in the

legislative process. After all, a judge is isolated from legislative activity until a legal challenge to a

statute brings it into his or her courtroom. On the other hand, agency personnel can play active roles

in determining what policy directions a legislature should pursue or even the language legislators

should include in an act. In his survey of agency personnel involved in statutory interpretation, Walker

describes the participation of agency rule drafters as both technical drafters, who help to make sure

proposed legislation “is textually and structurally coherent and consistent with existing law,” and as

substantive drafters, whose efforts involve “shaping the actual policy objectives of the proposed

legislation” (Walker 2015, 1036). According to Walker’s data, 78 percent of rule drafters claim their

agencies engage in technical drafting always or often while 59 percent said the same for substantive

drafting (1037). The question is whether such high levels of involvement by agency personnel in the

legislative process merit the legitimacy Chevron has bestowed on agency statutory interpretation?

It does stand to reason, however, that an agency would have the capacity to make accurate

inferences of the legislative will based on legislative history. Meanwhile, the stakes that agency rule

drafters have in the formulation of a statute at its early stages subsequently lowers the possibility that

the agency would be an unfaithful agent while implementing the statute. Strauss’ argument for the

purposivist approach for agency statutory interpretation almost seems a foregone conclusion given

24
the context of an agency’s legislative role. As in the discussion of federal, state, and local judges,

therefore, this paper concludes that the inclinations of an agency regarding the implementation of a

statute transcend the textualism-purposivism debate because the former approach is a nonfactor,

while the latter approach is naturally appropriate given the agency’s policymaking mandate according

to Chevron and the agency’s relationship with the legislature.

Section V

Conclusion Using an Example from Welfare Rights Law

Using the information learned so far regarding the role of purposivism and textualism in the

context of statutory interpretation in federal, state, and local courts and agencies, this concluding

section looks for relevant examples from R. Shep Melnick’s work on welfare rights laws. Aid to Families

with Dependent Children, or AFDC, for example, was a small provision of the Social Security Act of

1935 that later transformed into a $20 billion program by 1991 (Melnick 1994, 65). Since the

responsibility for implementing AFDC benefits resided largely with state governments, the central

question of contention over the statute became whether states could set the eligibility requirements

for doling out those benefits (66). The problem was not a theoretical battle over states’ rights but real

contention over what some welfare rights advocates and Congressional legislators saw as prejudicial,

moralistic, and inequitable constraints on eligibility for AFDC benefits in certain states that had

histories of racial or social tensions (74; 86). But when they were unable to spur Congressional action

against controversial state eligibility requirements, reform-minded and welfare-rights-based interest

groups propped up by liberal Congressional allies took their grievances to the courts (67). Reformers

smartly used statutory arguments, as opposed to constitutional ones over rights violations that were

more controversial and harder to prove (86).

25
 Though undiscussed by Melnick, there was perhaps another impetus for reformers to seek

changes to AFDC rules in the courts besides the fact that they could get no cooperation from Congress.

The era of these AFDC reform efforts coincided the tenure of Chief Justice Warren on the Supreme

Court. Thus, it was likely his reputation as a purposivist judge that gave reformers hope that, under

Warren’s leadership, the Supreme Court would interpret the statutory language of AFDC in a way that

would produce the outcomes they desired. The tactical expectations of reformers were rewarded, as

it turned out, starting with the King v. Smith (1968) Supreme Court ruling in which, as Warren explains

in his majority opinion, “At issue is the validity of Alabama’s so-called ‘substitute father’ regulation,

which denies AFDC payments to the children of a mother who ‘cohabits’ in or outside her home with

any single or married able-bodied man” (Warren 1968, 392). He continues:

Under this provision, and, insofar as relevant here, aid can be granted only if "a parent" of the

needy child is continually absent from the home. Alabama considers a man who qualifies as a

"substitute father" under its regulation to be a nonabsent parent within the federal statute. The

State therefore denies aid to an otherwise eligible needy child on the basis that his substitute

parent is not absent from the home. (392)

Warren’s interpretation of Alabama’s law as a wrongful denial of eligibility is a contextualized

verdict. However, more consequential to welfare rights, overall, is how he argues against past

Congressional intent from the Social Security Act of 1935, which enabled states to “impose eligibility

requirements relating to the ‘moral character’ of applicants, and proceeds to make this feature

impermissible based 1960s-era perceptions of discrimination. One example he cites is the Fleming

Ruling, authored by the Secretary of Health, Education and Welfare, and approved by Congress in

1962, which forbids states from withholding eligibility for assistance to a needy child on “the basis

that the home conditions in which the child lives are unsuitable’” (Warren 1968). Therefore, despite

the fact that the language of the actual statute containing the AFDC provision permitted states to enact

eligibility requirements for welfare assistance based on moral character, Warren looked outside of the

26
statute to find justification for reversing the statute according to a timelier source of legislative history

from a separate case. Although Warren resorted to a purposivist approach, it appears unlikely that a

commitment to purposivism was what guided his decision. Rather, Warren used three decades of

hindsight from social history to make what was, in his view, the most reasonable determination. It is

hard to know if a cognitive bias for a policy preference that expanded welfare rights was the inclination

for Warren’s use of purposivism, or if he objectively viewed the more contemporary Fleming Ruling as

a better indication of legislative will than the historical language in the Social Security Act.

Hypothetically, it seems logical, then, that if the original language of the 1935 act outlawed

moral character-based eligibility requirements, and the current Congress supported such

requirements in recent legislation, then Warren would have resorted to a textualist approach and

assign supremacy to the clear meaning of the statutory language. In this scenario, if social trends

favored the Congressional viewpoint, Warren’s inclinations for using textualism could be assigned to

his policy preference. Conversely, if societal opinion contrasted with Congress’ view, then Warren’s

inclinations would have been done out of objectivity for the most reasonable solution, and that would

be even truer if Warren himself disagreed with policy approach he ultimately supported with his verdict.

All hypotheticals aside, though, is seems clear that it is not a commitment to textualism or purposivism

that matters most in statutory interpretation but rather the inclinations of individual judges. These

inclinations can have different sources, but they will likely transcend the textualist-purposivist debate

regardless. Going forward, discussions about ideal statutory interpretation should, therefore, not focus

on what approach a judge uses to interpret a statute but rather the personal inclinations that judge

may have for using either a statute’s clear meaning or legislative history to rule the way he or she does

in a particular case.

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Chicago Law Review 79:4, 2012: 1215-1283.

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Cornell University. June 25, 1984.

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STATUTORY INTERPRETATION—AND THE IRREDUCIBLE ROLES OF VALUES AND JUDGMENT

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