Canons of Construction and the Elusive Quest for Neutral Reasoning

Over the past two decades, the canons of construction have experienced a remarkable revival in the courts and the legal academy. While the role of this interpretive resource has been heavily theorized, it has until now been underexplored from an empirical standpoint. Professors Brudney and Ditslear rely on empirical assessment and doctrinal analysis to uncover the Supreme Court's complex patterns of reliance on the canons during the Burger and Rehnquist Court eras. The authors' dataset consists of 632 Supreme Court decisions-every case decided by written opinion from 1969 to 2003 that directly addresses some aspect of the employment relationship. Brudney and Ditslear focus on whether the canons are favored across different time periods, in particular subject matter areas within the labor and employment field, by individual Justices, and in close cases. Their approach-identifying ten distinct interpretive resources, linking reliance on these resources to ideological outcomes, and pursuing extensive doctrinal examination of individual cases-breaks important new ground in the analysis of judicial reasoning. The authors present a rich array of findings regarding canon usage. The Court's reliance on both language canons and substantive canons in its majority opinions has virtually doubled from the Burger to the Rehnquist eras, even as the Court's reliance on legislative history has notably declined. Variation in canon usage among individual Justices has contributed to this larger change in the Court's reasoning approach, sometimes in surprising fashion. Dependence on the canons also has varied considerably across different subject matter areas of workplace law. For instance, language canon reliance has been especially frequent in decisions implementing the employee benefits provisions of ERISA and in opinions construing detailed safety and health legislation. Brudney and Ditslear further found that canons are often invoked to justify conservative results in close cases-those decided by a one-vote or two-vote margin. Indeed, closely divided cases in which the majority relies on substantive canons are significantly more conservative in outcome than close cases in general, and close cases in which the majority relies on language canons also have a conservative tilt. These and other results shed light on various claims made by legal scholars and judges regarding the canons' role as neutral interpretive norms. There is some support for public choice proponents' assertions that decisions interpreting complex and technical statutes are more likely to involve language canon reliance. After analyzing several such decisions, however, the authors suggest that this reliance is best explained by reference to characteristics of the statutes under review rather than to the Justices' desire to avoid error or embarrassment. Brudney and Ditslear find little evidence to support legal process scholars' claims that the canons serve as consistent and predictable guides to statutory meaning. In non-unanimous cases, majority reliance on language canons is likely to be accompanied by dissent invocation of language canons, and the same association exists between majority and dissent reliance on substantive canons. The authors analyze a number of these "dueling canons" cases in doctrinal terms, and show how the malleability of the canons does little to limit judicial discretion. Finally, Brudney and Ditslear identify an important subset of cases in which the majority relies on canons while the dissent invokes legislative history. These cases, almost all decided since 1988, have yielded overwhelmingly conservative results. Doctrinal analysis of illustrative decisions indicates that conservative members of the Rehnquist Court are using both language canons and substantive canons in these contested cases to help undermine the demonstrable legislative preferences of Congress. Overall, the authors' results and analyses offer a sobering counterpoint to the elevated normative claims that have been made by some Justices and many scholars on the canons' behalf. …