Federal statutes, like the lawmaking enterprise itself, are seldom models of efficiency. Whether through inevitable laxity or conscious choice, Congress when legislating leaves a fair number of gaps in the meaning of its complex regulatory schemes. In filling those gaps with case-specific interpretive responses, federal courts perform an important policymaking function.
Such policymaking has lately generated increased concerns about the politicization of the judiciary. Scholars using social science techniques have contributed to the image of courts as policymakers, by establishing that judges' political party affiliation and ideological orientation are at times significant predictors of voting behavior. Presidents and senators have implicitly endorsed this image through their sharp-edged insistence on scrutinizing candidates and nominees for ideological compatibility. Even some judges, by candidly discussing the role of personal beliefs and value judgments in their decision making matrix, acknowledge a policy-oriented dimension to their interpretation of statutes, albeit as a junior partner in the lawmaking enterprise.
This acknowledgement of political influence is difficult to reconcile with the prevailing conception that our courts derive their legitimacy in large part from objective and transparent methods of judicial decisionmaking. The tension between judges as value- promoting policymakers and judges as principled, impartial actors implicates a core aspiration of our legal culture: that judicial techniques of reasoning are or ought to be both reasonably predictable and outcome-neutral.
This Article explores a central aspect of that aspiration by examining the Supreme Court's expressed reliance in recent decades on one assertedly neutral reasoning technique-the canons of construction-in one area of substantive doctrine, the law of the workplace.
Our approach is both empirical and doctrinal. We rely on bivariate and regression analyses to illuminate how the canons have been used in our dataset of more than 600 cases--over periods of time, across different subject matter categories, by individual Justices, and in closely contested decisions. We then analyze selected individual opinions in some detail to assess several competing theoretical accounts of how the canons operate. Through this combination of methods, we evaluate the role that the canons have played in justifying the Supreme Court's workplace jurisprudence.
James J. Brudney and Corey Ditslear,
Canons of Construction and the Elusive Quest for Neutral Reasoning,
58 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol58/iss1/1