THE ENDURING RELEVANCE OF CONGRESS DESPITE THE COURT'S SHIFT TO “ORDINARY READER” STATUTORY INTERPRETATION

Authors

Abbe R. Gluck
Laila M. Robbins

Abstract

Has Congress become irrelevant to statutory interpretation? The dominant theoretical and doctrinal paradigm in American statutory interpretation has always been the conversation between Congress and the courts. Today, however, the Court’s new, second-generation textualists claim they have left Congress behind. They argue they have changed textualism’s perspective, from an “insider” perspective focused on Congress’s textual choices, to an “outsider” perspective based on how “ordinary people” read statutes. The Court’s self-professed shift away from a legiscentric approach, if true, would be a seismic shift in the conception of the judicial role. Whereas judges and scholars—including first-generation textualists—had for a century focused on legislative supremacy and Congress’s practices and intentions, today, a majority of the Court claims its role is something entirely different. Rather than serve as a “junior partner” of the legislature, the Court says its role is to enforce a populist conception of how regular people encounter statutes, as well as the value of fair notice. But as it turns out, divorcing statutory meaning from Congress is not as simple as it looks. Our review of statutory interpretation cases over the past six Terms illustrates that, despite their protests, even the most ardent textualists’ opinions that purport to turn on ordinary meaning are in fact riddled with implicit—and sometimes explicit—assumptions about congressional intent and how Congress drafts, including surreptitious uses of legislative history. This Essay explores the Court’s rhetorical shift and why it has not been complete in doctrinal implementation. The congressional perspective in fact remains ubiquitous in the Court’s interpretive work, even as the Court disavows it.

Recommended Citation

Abbe R. Gluck & Laila M. Robbins, THE ENDURING RELEVANCE OF CONGRESS DESPITE THE COURT'S SHIFT TO “ORDINARY READER” STATUTORY INTERPRETATION, 33 J. L. & Pol'y 29 (2024).
Available at: https://brooklynworks.brooklaw.edu/jlp/vol33/iss1/3