Anita S. Krishnakumar is a professor of law and the associate dean for faculty scholarship at St. John’s University School of Law.

Substantive canons of statutory construction — such as the rule of lenity or the canon of constitutional avoidance — sometimes play a pivotal role in the Supreme Court’s statutory interpretation cases. As a result, these canons have received a lot of attention from statutory interpretation scholars and court commentators. The conventional wisdom is that textualist judges, in particular, tend to invoke substantive canons often — both in order to mitigate the rigors of textualism and to provide context that such judges lack because of their refusal to consult legislative history.

Perhaps the most notorious recent invocations of substantive canons occurred in NFIB v. Sebelius and Northwest Austin Municipal Utility District No. 1 v. Holder, two high-profile cases of the last decade in which a majority of the court relied on the canon of constitutional avoidance to interpret the Affordable Care Act and the Voting Rights Act, respectively. The canon of constitutional avoidance directs that when a statute is susceptible of two constructions, one that gives rise to grave and doubtful constitutional questions and another that avoids such questions, the court should adopt the construction that avoids the constitutional questions. NFIB and Northwest Austin have become infamous because in both cases the Supreme Court adopted statutory readings that were difficult to square with the statutes’ text, relying on the need to avoid “grave” constitutional infirmities to justify its strained interpretations.

In a recent article, I argue that notwithstanding high-profile cases like NFIB and Northwest Austin, substantive canons have performed far less work in the Roberts court’s statutory interpretation cases than scholars and commentators have suggested. The article, published in the University of Chicago Law Review, draws on data from an empirical study of every statutory interpretation case decided by the Roberts court between 2006 and 2012 (296 cases in total). The data show that, contrary to popular belief, substantive canons have been invoked only infrequently by the Roberts court — that is, in only 14.4 percent of the 603 separate opinions authored in the 296 statutory cases decided during the six-and-a-half terms studied. The only interpretive resource cited less often by the court during that time period was the common law, which was referenced in just 11.4 percent of the opinions. By comparison, Supreme Court precedent was cited in 52.6 percent of the opinions studied; the plainness of the statutory text was cited in 44.8 percent of the opinions; the practical consequences that would follow from an interpretation were cited in 33.7 percent of the opinions; and language canons including the whole act rule were cited in 32.3 percent of the opinions.

Perhaps most interestingly, even when the members of the Roberts court did invoke a substantive canon in a statutory interpretation case, the canon rarely played an outcome-determinative role in the court’s statutory construction. Indeed, fewer than 30 percent of the opinions that invoked a substantive canon (or roughly 4 percent of the 603 opinions authored during the relevant time period) relied primarily on the substantive canon to construe the relevant statute. Rather, the vast majority of the small percentage of cases that referenced a substantive canon did so only in a passing, or secondary, manner, not in the primary manner made infamous by NFIB and Northwest Austin.

Equally interesting is that despite Justice Antonin Scalia’s decades-long crusade against the use of legislative history in statutory interpretation — and despite numerous scholars’ gloomy warnings that substantive canons have replaced legislative history as the go-to resource for deciphering ambiguous statutory text — legislative history references have far outpaced substantive canon use on the Roberts court (at a rate of 25.0 percent versus 14.4 percent during the period studied). Significantly, most of the justices who served on the Roberts court during the period studied (eight of 11) referenced legislative history at noticeably higher rates than they referenced substantive canons. Even the court’s most vocal textualist justices — including Scalia — rarely invoked substantive canons in the opinions they authored. In fact, Scalia invoked substantive canons at almost the same rate (11.0 percent) at which he invoked legislative history (9.8 percent) — an interpretive resource he considered illegitimate.

The article also challenges several other assumptions made by scholars and court-watchers. The conventional wisdom is that substantive canons serve as unpredictable interpretive trump cards, the equivalent of a rabbit pulled out of a hat by judges seeking to reject the statute’s plain meaning or congressional intent in favor of a reading they like better. Scholars have pointed out that substantive canons are countermajoritarian, subject to judicial invention and reinvention, and difficult for Congress to overcome.

The Roberts court’s treatment of substantive canons calls all of these conventional assumptions into question. First, the members of the Roberts court were remarkably consistent and predictable in their use of substantive canons. Most of the cases that invoked a substantive canon referenced one of just six well-established canons — the avoidance canon, the rule of lenity, the presumption against pre-emption, a federalism clear-statement rule, the presumption against retroactivity, or the narrow construction of waivers of sovereign immunity. The substantive canons invoked in the other cases decided during the period studied also tended to be familiar ones; indeed, only four cases invoked a substantive canon that arguably could be called new (i.e., had not been referenced in any previous case).

Second, in the cases in which the Roberts court did rely primarily on a substantive canon, it often did so in order to honor, rather than undermine, congressional intent. For example, in Skilling v. United States, the court’s majority opinion used the avoidance canon to honor a congressional override of one of the court’s previous decisions, McNally v. United States. McNally had reversed decades of lower court precedent by interpreting the mail and wire fraud statutes not to criminalize honest-services-based fraud, such as kickback and bribery schemes. Congress quickly overrode McNally, enacting a new statute that was expressly designed to cover the “intangible right of honest services” that lower courts had protected prior to McNally. Skilling was an Enron executive charged with investment fraud under the new statute; he challenged the statute as unconstitutionally vague. The Roberts court acknowledged that Skilling’s vagueness challenge had merit, but invoked the avoidance canon to construe the statute narrowly, to avoid covering conduct such as Skilling’s. Specifically, the court observed that the history of Supreme Court-Congress interactions demonstrated that Congress intended the new statute to incorporate the honest-services doctrine that had been recognized for years before McNally was decided. It then found that although the pre-McNally case law was inconsistent about the outer reaches of the honest-services doctrine, the “vast majority” of honest-services cases decided before McNally involved offenders who had participated in bribery or kickback schemes, in violation of a fiduciary duty. In order to “preserve the statute without transgressing constitutional limitations,” the court thus read the new law to criminalize only the bribe-and-kickback core of the pre-McNally case law and not to apply to investment frauds such as that committed by Skilling.

Finally, contrary to the prevailing perception that substantive canons empower judges to decide cases based on their individual policy preferences, the data show that the conservative justices on the Roberts court invoked substantive canons to support liberal outcomes nearly as often as, and in some cases more often than, they invoked such canons to support conservative outcomes. Specifically, Justices Scalia and Clarence Thomas invoked substantive canons to support liberal outcomes almost as often as they invoked substantive canons to support conservative outcomes (with differentials of only one or two cases); and Chief Justice John Roberts and Justice Anthony Kennedy invoked substantive canons to support liberal outcomes more often than they invoked substantive canons to support conservative outcomes. The liberal justices, by contrast, invoked substantive canons more predictably — to support liberal outcomes in the vast majority of cases.

Ultimately, the data from the Roberts court’s first several terms reveal that many common assumptions about the Supreme Court’s use of substantive canons in statutory interpretation cases turn out to be incorrect — or at least overstated — when examined empirically. Although there are certainly some statutory cases in which substantive canons have played a pivotal, outcome-determinative role, the impression of rampant substantive canon use created by a handful of high-profile cases such as NFIB and Northwest Austin is misleading. Indeed, the data from the Roberts court suggest that substantive canons have received a bit of a bum rap from legal scholars — and that they perhaps are neither as prevalent nor as inherently dangerous as scholars have made them out to be.

Posted in Academic Round-up, Featured

Recommended Citation: Anita Krishnakumar, Academic highlight: Substantive canons in the Roberts court, SCOTUSblog (Jan. 5, 2018, 11:12 AM), http://www.scotusblog.com/2018/01/academic-highlight-substantive-canons-roberts-court/