This Article reports the results of a survey of a diverse group of forty-two federal appellate judges concerning their approaches to statutory interpretation. The study reveals important differences between their approaches and the approach that the Supreme Court purports to take. It also helps to substantiate the irrelevance of the enduring, but now-boring, textualism-versus-purposivism debate. None of the judges we interviewed was willing to associate himself or herself with “textualism” without qualification. All consult legislative history. Most eschew dictionaries. All utilize at least some canons of construction, but for reasons that range from “window dressing,” to the use of canons to assist in opinion writing, to a view that they are useful decision tools. Most of the judges we interviewed are not fans of Chevron, except for the judges on the D.C. Circuit, which hears the bulk of Chevron cases. Some of the judges interviewed believe that understanding Congress is important to a judge’s work, while others do not see how judges can use such understanding to decide cases. Most express doubt that the Supreme Court’s interpretive methodology binds the lower courts. The younger judges, who attended law school and practiced during the ascendance of textualism, are generally more formalist and accepting of the canons of construction, regardless of political affiliation. The older judges are less focused on canons, take a broader view of their delegated authority, and appear to grapple more with questions of judicial legitimacy.
The approach that emerged most clearly from our interviews might be described as intentional eclecticism. Most of the judges we spoke to are willing to consider many different kinds of argument and evidence, and defend that approach as the only democratically legitimate one. Yet at the same time many observe a gap between how they actually decide cases and how they write opinions, a gap they attribute to the disconnect between the expectations of the public and the realities of judicial decisionmaking.
* Professor of Law and Faculty Director, Solomon Center for Health Law and Policy, Yale Law School.
** Former Judge of the U.S. Court of Appeals for the Seventh Circuit, currently President of Team Posner, Inc., a company that focuses on assisting pro se legal claimants. We are very grateful to the judges we interviewed for their candor and generosity. Special thanks also to Bill Eskridge, Patricia Goldrick, David Pozen, Amy Semet, participants at the Columbia Law School Faculty Workshop, and Yale Law School students Leslie Arffa, Miriam Becker-Cohen, Samir Doshi, Carter Greenberg, Yume Hoshijima, Julie Hutchinson, Philipp Kotlaba, Michael Morse, Max Siegel, and Matthew Sipe.