When someone has a hammer, every problem risks looking like a nail. And when a legal scholar has a theory, every case risks becoming an application of it.
With that disclaimer in mind, I think that Pulsifer v. United States, the Supreme Court’s recent statutory interpretation chestnut, nicely illustrates my view (elaborated here) that statutory interpretation is largely permissive as well as structured by three “basic rules.”
In brief, Pulsifer involved a statute whose literal text naturally invites a reading that would have helped many criminal defendants. But lots of contextual information made that literal reading seem like an odd fit with the legislature’s apparent goals.
For example, the statute took the following form: “defendants are entitled to resentencing if they do not have A, B, and C.” This construction is most naturally read conjunctively, so that the property of having A-and-B-and-C is what disqualifies someone from the benefit. By analogy, “Don’t drink and drive” means “don’t drink-and-drive,” not “don’t drink” and also “don’t drive.”
But that conjunctive reading has some strange implications in the statute at issue. As the Pulsifer Court argued, for instance, the literal reading “would allow relief to defendants with more serious [criminal] records while barring relief to defendants with less serious ones.” That result seems at odds with the legislature’s evident goals in distributing resentencing opportunities.
This glimpse of the back-and-forth in Pulsifer suggests a conflict between two of the basic rules. First, the literal rule allows courts to enforce a statute’s literal meaning. Second, the mischief rule allows courts to deviate from literal meaning when doing so comports with actual legislative goals.
In Pulsifer, each side had one basic rule in hand: the majority had the mischief rule, and the dissent the literal rule. So, under the basic rules, either outcome was permissible. Consistent with that view, the Court’s 6-3 voting alignment cut across ideological and methodological lines. Relatively textualist jurists combined with relative non-textualists, and left jurists aligned with right ones. Lower courts, too, generated splits of authority formed out of unusual alliances.
Other interpretive principles lay in the background. While the dissent’s literal reading had odd implications, it was not so shocking in its consequences as to seem either catastrophic or senseless. That point explains why the third basic rule, called the golden rule, did not come into play. (A similar point can be made about the related and more familiar “absurdity” rule.)
What about the rule of lenity? The majority cast it aside on the ground that the statute wasn’t “genuinely” ambiguous; thus, there was no permissive choice for the rule of lenity to resolve. The dissent, by contrast, trumpeted the rule of lenity. Does the majority’s striking conclusion, in the face of a dissent, mean that the rule of lenity has effectively been overruled?
No, because the rule of lenity in practice operates as a plaudit. In other words, compliance with the rule of lenity generates legalistic praise for opting in favor of a particular permissible option; but the rule does not mandate anything. The Pulsifer dissenters garnered that praise in many quarters by favoring lenity. And, in passing up that praise, the majority left the plaudit where they found it. So, instead of being overruled, the rule of lenity abides.
The basic rules have had a vaunted career in both British and, at one time, American legal culture. As I have just argued, moreover, Pulsifer illustrates the explanatory power of these rules today. Yet some aspects of Pulsifer show a gap between current practice and the permissive basic rules.
Most obviously, the justices denied that there was a permissive choice at all. While agreeing that there were “two grammatically permissible readings,” for instance, the Court worried about textual superfluity and that “more serious” offenders might receive preferential treatment. That is why, as already noted, the Court rejected lenity: “The two possible readings thus reduce to one.”
For another thing, both sides in Pulsifer appealed to both of the basic rules at play. That is, the majority spent a lot of time trying to deflect arguments from the text; and the dissent stretched to find support in congressional goals. In a more overtly permissive regime, these relatively strained arguments would be superfluous and disposable. Each side could rest on its strongest points to establish legal permissibility, and there would be no need to claim overall victory on all aspects of the case.
Most fundamentally, a permissive approach would have invited both sides to explain why they chose the formally permissible option that they did. For the majority, this might involve a claim about the importance of denying relief to the “more serious” offenders alluded to above. And the dissent might point to the benefits of resentencing as many offenders as possible. To some extent, these ideas already appear in the competing opinions. But, in a permissive system, the case’s deeper moral implications could assume a more central role, potentially changing justices’ votes. Judicial personality, or a judge’s personal rules of decision, could likewise fill gaps in formal law.
In this way, the permissive basic rules would allow judges, and legal culture generally, to recognize the force of formal legal argument while also acknowledging its limits. Again, the Court insisted that the “two grammatically permissible readings” ultimately “reduce to one” mandatory conclusion. But no formal principle of law dictated that result. The Court’s conclusion is better understood as a choice among legally available options, even if it did not view its own decision in that way.
To be clear, avowedly permissive interpretation would leave many cases unaltered. Sometimes, the basic rules converge or otherwise dictate a single legal answer. And, at other times, the key dispute is whether a single basic rule applies. In those cases, the basic rules would mark the boundary between what is mandatory and what is disallowed, consistent with a non-permissive view of interpretation.
In hard cases like Pulsifer, however, the law does not dictate an answer because the fundamental determinants of interpretation conflict with one another. When two basic rules diverge, formal law does not specify just what to do. Legal culture would benefit from more candidly acknowledging those zones of indeterminacy. Once recognized, they can be confronted or managed.
Whether an overtly permissive approach is ultimately desirable is a complicated question. The more essential point here is descriptive. We should reject the notion that the justices are all textualists now. And we should also deny that the Court is divided between textualists and non-textualists. Instead, cases are largely decided according to the permissive basic rules.
Re’s Judicata 