Wednesday, June 16, 2010

How Justices Read Statutes

A review of Frank Cross's "The Theory and Practice of Statutory Interpretation" is available at Concurring Opinions.

According to the review, Cross analyzes "four competing theories of statutory interpretation—textualism, legislative intent, interpretive canons, and pragmatism."  He "provide[s] a virtual primer on the most prominent works in the field of statutory interpretation . . . infused with Cross’s own incisive take on the standard debates."

Cross also conducts an emiracle study of statutory interpretation at the US Supreme Court.  He concludes "the use of textualist interpretive tools does not seem to have any constraining effect on ideological judging. In fact . . . the plain meaning standard seemed to be ideologically manipulable — in that the probability of a Justice reaching a liberal or conservative outcome using the plain meaning standard corresponded rather closely to the Justice’s overall ideological preferences."

So Cross apparently claims liberal justices can read the plain language of a statute as supporting a liberal construction, and conservative justices can read its plain language as supporting a conservative construction.

The reviewer calls this "counter-intuitive" and "a little mind boggling."

Do you think so?