Legal Commentary

Most readers probably do not follow the bumper crop of recent SCOTUS opinions that deploys canons of statutory construction, but they are personal favorites of mine. Indeed, I taught a couple of them from the '07 term of the Court this Spring. Although most people would not regard United States v. Hayes' treatment of the "last antecedent" rule as one of the most scintillating SCOTUS performances of the '07 term, I would suggest that Hayes, Begay v. United States, and Ali v. Bureau of Prisons are among the most interesting cases of the term, suggesting that textualism as a serious interpretative practice is alive but not well at the SCOTUS. (Shameless self-promotion: I wrote up a short piece for Tulsa Law Review amplifying this point that the Court's majority writes purposivist opinions tricked out in textualist clothing (Download Hills - Final5 _with Hills revisions inserted. Note that the .pdf has edits inserted, responding to Mitch Berman's and Eugene Kontorovich's excellent comments)).

On a more Realist note, observe that the concept of statutory "ambiguity" remains as ambiguous as ever, allowing the Court to turn textualism on and off like a spigot as it suits them. For instance, Ali is a 5-4 decision, but Justice Thomas' majority refuses to consult legislative history. How is it possible that the immunity waiver in Ali was not ambiguous enough to justify recourse to extrinsic sources, if SCOTUS splits down the middle on its meaning? Are four justices simply obtuse? Likewise, as Roberts argues in his dissent (joined by "Lenity Scalia"), Hayes' tortured analysis of the "last antecedent" rule surely indicates ambiguity sufficient to trigger the lenity canon, yet the majority (7-2) finds that the statute is clear enough to be enforced according to its "manifest purpose" as inferred from legislative history. Apparently, the level of ambiguity was sufficient to get to legislative history but not to get to the promised land of lenity.

Could it be that the combination of getting tough on domestic violence and gun possession (Ginsburg, Stevens, Souter, and Breyer) and/or just getting tough on criminal defendants (Kennedy, Alito) outweighed textual niceties of the "last antecedent rule" in Hayes? Might it be that the prospect of awarding tort damages to some prisoner for the loss of a trivial amount of personal property influenced the majority in Ali more than the finer points of ejusdem generis? In short, textualism might produce consensus -- but only when ideological merits of the case are, as in Hayes, even murkier than the statute's text.