by Frank B. Cross. Stanford, CA: Stanford University Press, 2009. 248pp. Cloth $50.00. ISBN: 9780804759120.
Reviewed by Bruce Peabody, Department of Social Sciences and History, Fairleigh Dickinson University. Email: bpeabody [at] fdu.edu.
It has been sixteen years since Martin Shapiro (1993) exhorted law and courts scholars to turn their attention “outward and downward,” to continue moving their research (and teaching) away from a preoccupation with the Supreme Court and constitutional law. The intervening years suggest that many have answered Shapiro’s call, engaging in comparative studies, examinations of lower and state courts, research on state and local law, and widely participating in the interdisciplinary collaboration that Shapiro championed.
Frank Cross’s new book, THE THEORY AND PRACTICE OF STATUTORY INTERPRETATION, continues in this tradition by examining both the theory and practice of federal courts’ interpretation of statutory law. While the Supreme Court is certainly a vital reference point in Cross’s study, he also considers, in some detail, statutory interpretation by also U.S. circuit courts, and many of his observations and conclusions are relevant to the federal judiciary as a whole (not to mention state courts).
Broadly speaking, THE THEORY AND PRACTICE OF STATUTORY INTERPRETATION addresses the question of how courts should interpret the thousands of federal statutes “rife with ambiguities,” intentional and otherwise. As Cross notes, both courts and scholars have struggled in their efforts to create a “coherent system” (p.viii) for interpreting congressional law. He proposes to illuminate the debate about the “correct method” (p.23) a judge should employ in applying federal law, by presenting and evaluating various claims about these different theories of interpretation. Cross’s book is explicitly theoretical (he engages a vast literature discussing purported defects and benefits of the principal schools of statutory interpretation), empirical (he presents original and secondary research in testing these claims about various interpretive methods, and in conveying a more general picture of judicial behavior), and normative (as noted, Cross is interested in providing reliable orientation points in the debate about how judges should approach statutory interpretation).
At a number of turns, Cross trains his attention to the question of whether particular methods of statutory interpretation contribute to or inhibit “ideological” or attitudinal judging (p.23). Are some approaches, like textualism, more likely than others to compel non-ideological results primarily informed by legal rules and principles rather than personal predilections? As discussed further below, Cross ultimately presents results that may be surprising to some scholars and judges, finding, for example, that a reliance on [*633] textualism or “plain meaning” in statutory interpretation does little to inhibit ideological judging, while other approaches, such as pragmatism, may induce greater ideological neutrality.
In Chapter One, the author frames his queries by considering the goals of statutory interpretation. He argues that a federal court’s authority to interpret statutes is best understood by thinking of judges as “agents who do the bidding of Congress” (p.3). We should presume “legislative supremacy in the statutory sphere,” and regard the judiciary’s power to interpret Congressional law as being limited to advancing the legislature’s goals. Stated somewhat differently, under Cross’s delegation theory, “the legislature is the principal and the courts are its agent.” Cross notes that, under this framework, Congress inevitably delegates a great deal of responsibility to the courts through both “background delegation” (the legislature’s inability to anticipate contingencies and future developments) and “direct delegation,” more affirmative cessions of authority to the courts (pp.4-5).
In the next four chapters, Cross examines the four “leading” theories of statutory interpretation. He considers, in turn, textualism (focusing on the text of the statute and the “plain meaning” provided by Congress in the black letter law), legislative intent (interpreting statutes based on finding evidence of congressional purposes through a range of legislative materials), “interpretive canons” (judge-created rules that serve as grammatical and substantive guides in statutory interpretation) and pragmatism (which Cross associates with judge Richard Posner’s emphasis on heeding “consequences” and “reasonableness” in judging, and, separately, William Eskridge’s theory of “dynamic statutory interpretation”).
In each of these chapters the author reviews the “extensively discussed theoretical arguments underlying each approach” (p.ix) by drawing on scholarship as well as comments by judges and justices. In large measure, Cross considers the cases for and against his four approaches (and their variants), by evaluating the degree to which these different methods of statutory interpretation comport with or detract from his delegation model, or inhibit or promote attitudinal judging. On this latter point, Cross reflects upon both whether some methods of interpretation may constrain the ideological preferences of judges, as well as whether some approaches may inherently slant judges towards certain “political” outcomes. A case can be made, for example, that textualism is inherently conservative to the degree it “constrains the legislature, as well as the courts, and basically limits the scope of government” (p.55).
Chapters 6 and 7 examine the use of Cross’s designated methods of statutory interpretation in over 120 Supreme Court decisions from 1994-2002. Chapter 6 finds that, over this period, the justices used textualism more frequently than the other methods, “but not so much more often as might be presumed” (p.148) by someone who associates the Rehnquist Court era with an “age of textualism.” Cross also finds a link between the ideology of some justices and the methods they employ. For example, Justices Scalia and Thomas were far more likely to use textualism as [*634] opposed to legislative intent in their opinions, while Breyer and Stevens invoked pragmatic arguments about five times as frequently as their most conservative brethren (p.149). That said, justices favor “pluralism,” regardless of their ideology, that is, they are not shy about using multiple interpretive methods in rendering their statutory rulings.
In Chapter 7, Cross taps his eight year data set to examine the possible influences of political ideology on statutory interpretation. He finds that use of “plain meaning” is the most susceptible to ideological influence – viz., opinions relying on textualism are the least likely to alter the ideological predispositions of a justice. Conversely, both legislative intent and pragmatism tended to produce more liberal outcomes (than other methods employed) regardless of the ideology of the judges who employed these interpretive approaches. Cross notes that these results are perhaps surprising, given the frequently advanced view that textualism is supposed to be legally limiting, while legislative intent (with so many sources and forms) should be “especially ideologically manipulable” (p.166).
Chapter 8 looks at the influence of the Supreme Court’s use of different interpretive methods on lower federal courts, especially circuit courts. Cross finds that lower courts reference textualist and pragmatic interpretations by the Court more than the other modes although, apparently, they often invoke textualism “negatively,” that is, in the course of trying “undermine the authority of the cited case” (p.193). Cross also notes that legislative intent references have declined “dramatically” in lower courts since the late 1980s and pragmatism, canon, and especially plain meaning references began surging around 1990.
These results raise further doubts about the accuracy of identifying textualism as the favored tool of conservatives, and associating legislative history with liberal decisionmaking. After all, as Cross discusses, the use of legislative history peaked at a time when lower courts were becoming increasingly conservative, and decreased even as they were shifting back to the left following the election of Bill Clinton (p.186). On the other hand, the boom in textualism continued after the circuit courts’ ideological conservatism began to wane.
Cross speculates that one explanation for these developments may simply be that a more conservative Supreme Court, fronted by Justice Scalia’s aggressive campaign for plain meaning (and opposition to legislative intent) put circuit judges on notice, regardless of their ideology. Alternatively (and not considered by Cross) one might entertain an “embattled liberal” hypothesis: liberals relied on references to legislative history preemptively (precisely at that moment when they saw the ideological terrain shifting) in order to buttress their opinions, which they knew would come under greater scrutiny. When liberals achieved greater prominence again after 1992, they felt less pressure to use this tactic, and it faded.
There is much to admire, celebrate, and emulate in THE THEORY AND PRACTICE OF STATUTORY INTERPRETATION. Cross is simultaneously ambitious and careful in presenting his arguments. He [*635] appropriately acknowledges and draws upon prior research, while still offering his own original ideas. He seamlessly integrates and organizes political science scholarship, legal research, and the work of sitting jurists, nimbly bringing these diverse voices into productive conversation.
Moreover, Cross’s work offers genuinely new insights about statutory interpretation and challenges established ways of thinking about this area of law. Throughout his inquiry, Cross adopts a curious, clear-eyed, and directed approach; he seeks to advance the project of “creating a coherent system” for interpreting statutes.
As indicated, THE THEORY AND PRACTICE OF STATUTORY INTERPRETATION is an ambitious book. As a result, it covers a great deal of intellectual terrain and encompasses numerous important themes. One hazard of this wide ambit, however, is that, at times, the precise goals and conclusions of the book can be difficult to discern. Cross is direct in stating that he does not seek to identify the best method of statutory interpretation but instead strives to clarify the debate about proper methods by uncovering the “facts that must underlie any solution” (p.viii) and “[which] arguments for particular methods are sound or unsound” (p.23). But what, exactly, are these intellectual building blocks? At the end of the book, what specific knowledge do we have for advancing our conversations about how to conduct statutory interpretation?
Cross suggests that following “social scientific” practices, he begins with “a theory and then tests it against practice” (p.x). Therefore, a reader might hope to get a view of Cross’s broader conclusions and purposes by looking to the particular theories he tests (and by assessing how they fare).
Clearly, one issue Cross explores in his book is how the specific strengths and weaknesses associated with his four theories of interpretation are born out in practice. In fact, however, each of his chapters on textualism, legislative history, the canons of statutory interpretation, and pragmatism are so complex and nuanced that they effectively introduce dozens of theoretical claims. Not all of these claims, however, are subsequently tested. To take just two examples: Do use of the canons promote legal “instability” more than other methods (p.98)? Does pragmatism produce more beneficial “social outcomes” than other methods (p.106)? Cross raises these and other questions in his “theoretical” chapters but does not systematically examine them in his empirical evaluations of judicial “practice.”
Conversely, some of the questions he empirically tests are not obviously derived from his earlier theoretical review of the different methods of statutory interpretation. For example, while Cross presents interesting results suggesting that only “pragmatism” shows a statistically significant effect in building consensus amongst the justices (that is, in bridging differences and attracting votes), it is not evident how this observation ties in to his theoretical claims about the different methods (p.156).
The sometimes loose connections between Cross’s different chapters and the different strands of argument within [*636] his book might lead one to wonder whether his core concern really is systematically testing the cogency and validity of different theoretical claims about the interpretive methods he presents. Alternatively, we might imagine that Cross’s book is primarily directed at examining the degree to which different theories of interpretation are amenable to “ideological manipulation” by judges, an issue which he calls “[p]erhaps the central dispute in statutory interpretation” (p.159). But as essential as this theme is, it comprises only a portion of Cross’s analysis.
In sum, the reader is left a bit uncertain how the different chapters of THE THEORY AND PRACTICE OF STATUTORY INTERPRETATION are interwoven and related. Upon reaching Chapters 6 and 7, for example, we can not anticipate what claims about interpretive methods he will be testing in these chapters.
More importantly, the absence of an extended concluding discussion leaves the reader somewhat hesitant about how to build upon and use Cross’s interesting, impressive, and diverse findings. How should we apply his book to debates about the extent to which legal rules can meaningfully bind judges? Cross finds that for every justice, regardless of ideology, “greater use of legislative intent yielded more liberal outcomes.” Does this strengthen or weaken “rule of law” arguments? At a few points, Cross also suggests that the rise of textualism is closely associated with the leadership of Justice Scalia. If this is true, are there broader lessons here about the conditions under which a lone justice might significantly impact judicial behavior and legal method? Are any of Cross’s preliminary conclusions likely to apply to district courts? How about state judicial systems? By not exploring these and other potential implications of his book (and sketching future research that should follow his findings), Cross may be selling his project short.
While of great and immediate value to scholars, THE THEORY AND PRACTICE OF STATUTORY INTERPRETATION is a fairly demanding read for undergraduates. The book’s individual arguments are admirably clear, but the volume assumes some vital background information (the author, for example, does not sketch pertinent differences between statutory and constitutional interpretation). That said, THE THEORY AND PRACTICE OF STATUTORY INTERPRETATION could be a valuable part of an advanced course on the Supreme Court or federal law, particularly if instructors were willing to spend some time “walking” their students through its central arguments and implications. Such a strategy may be tempting for many instructors given the opportunity Cross’s book provides for directing students away from a fixation on constitutional issues and towards greater appreciation for how original research, empirical and theoretical argument, and mastery of a complex scholarly literature can all be effectively deployed in trying to answer genuinely interesting and significant questions about law and courts.
Shapiro, Martin. 1993. “Public Law and Judicial Politics.” in Ada Finifter (ed.), THE STATE OF THE DISCIPLINE II. Washington: APSA.
© Copyright 2009 by the author, Bruce Peabody.