This Article’s findings also have important theoretical im- plications for other leading theories of statutory interpretation. Purposivism is an interpretive approach that encourages jurists to interpret a statute by identifying the statute’s purpose and se- lecting the meaning that best effectuates that purpose.275 Pur-
posive statutory interpretation typically involves inquiries into legislative history, the societal problem that prompted the legis- lature to enact the statute, legislative intent, and other sources that might shed light on a statute’s objectives. It can entail guesswork and judicial discretion, but is often defended on the ground that reliance on legislative history and purpose helps re- strict judicial discretion and fulfill congressional intent.276
Purposivism once was the dominant approach to statutory interpretation, but over the past few decades it has come under
avoid it and four to kill it.” E.M. Wise, The Doctrine of Stare Decisis, 21 Wayne L Rev 1043, 1051 (1975).
274 See generally, for example, Krishnakumar, 65 Duke L J 909 (cited in note 94);
Solan, 94 NC L Rev 1165 (cited in note 265).
275 See Henry M. Hart Jr and Albert M. Sacks, The Legal Process: Basic Problems in
the Making and Application of Law 1374 (Foundation Press 1994) (William N. Eskridge Jr and Philip P. Frickey, eds).
276 See John Paul Stevens, Judicial Predilections, 6 Nev L J 1, 2 (2005); Eskridge,
significant attack.277 The criticism has come both from textual-
ism and from public-choice theorists, who have condemned it as providing a rose-colored-glasses view of the legislative process. Both sets of critics have emphasized the open-endedness of the search for statutory purpose and have argued that purpose- based interpretation enables judges to import their personal pol- icy preferences into the statute.278
The data regarding the Roberts Court’s substantive canon use have at least two important implications for purposivism. First and foremost, the data show that despite textualism’s thirty-year- old campaign against legislative history—and despite scholars’ warnings that substantive canon use has increased while legis- lative history use has decreased279—substantive canons have not
displaced legislative history on the modern Supreme Court. As noted earlier, eight of the eleven justices who have served on the Roberts Court—including conservative, textualist-leaning Justices Alito and Kennedy—referenced legislative history more often than they referenced substantive canons in the opinions they authored.280 Moreover, a comparison of my data to Professors
Brudney and Ditslear’s data from the Burger and Rehnquist Courts shows that the conventional scholarly wisdom is only half correct: legislative history use did decline significantly from the Burger Court (46.6 percent) to the Rehnquist (27.7 percent)
277 See Roger Colinvaux, Note, What Is Law? A Search for Legal Meaning and Good
Judging under a Textualist Lens, 72 Ind L J 1133, 1139 (1997) (stating that purposivism “came under heavy attack” in the 1970s); Albert C. Lin, Erosive Interpretation of Envi- ronmental Law in the Supreme Court’s 2003-04 Term, 42 Houston L Rev 565, 574 (2005) (“Both intentionalism and purposivism came under increasing criticism in the 1980s.”); John F. Manning, The Absurdity Doctrine, 116 Harv L Rev 2387, 2415–17 (2003) (criti- cizing the reliability of using legislative history in statutory interpretation). See also John F. Manning, What Divides Textualists from Purposivists?, 106 Colum L Rev 70, 103–04 (2006) (arguing that relying on the text is the best way to make sense of the leg- islative process); William N. Eskridge Jr and Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan L Rev 321, 333–37 (1990) (describing multiple problems with the purposivist approach).
278 See, for example, Eskridge, Dynamic Statutory Interpretation at 25–29 (cited in
note 162) (criticizing purposivism and arguing that the application of statutory purpose is dependent on the perspective of the interpreter); Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 Stan L Rev 1833, 1884–85 (1998) (criticizing the “malleability of purposive interpretation”); Philip P. Frickey, From the Big Sleep to the Big Heat: The Revival of Theory in Statutory Interpretation, 77 Minn L Rev 241, 250–51 (1992) (describing flaws in the purposive ap- proach that could lead principled judges to reach the wrong results).
279 See Part I.A. 280 See Table 1.
and Roberts Courts (25.0 percent),281 but it has not been replaced
by substantive canon use. Indeed, while substantive canon use increased from 8.3 percent during the Burger Court to 15.6 per- cent during the Rehnquist Court and 14.4 percent during the Roberts Court,282 this 6.1 percentage point increase hardly makes
up for the 21.6 percentage point drop in legislative history refer- ences since the Burger Court, nor does it show that substantive canon use has surged ahead of legislative history use.
This is significant because, as scholars have noted, an im- portant part of what divides textualists from purposivists on the modern US Supreme Court supposedly is disagreement about what interpretive tools should be consulted when there is textual ambiguity (with textualists putting substantive canons second, while purposivists list legislative history and purpose in that slot).283 The Roberts Court data suggest that scholars have been
too quick to sound the alarm bells about the death of legislative history at the hand of substantive canons, or about the inversion of these two tools in the hierarchy of interpretive resources to be consulted. Judicial reliance on legislative history may have de- clined, but substantive canons have not filled the resulting void. Second, substantive canons may have something to offer purposivism as an interpretive tool. That is, given the doctrinal evidence discussed in Part II.C showing that substantive canons such as the avoidance canon at least sometimes are used to ful- fill congressional intent, and given purposivist/intentionalist Justices Stevens’s and Sotomayor’s willingness to invoke such canons in a nontrivial percentage of the opinions they author, purposivism may stand to benefit, as an interpretive theory, from expanding its interpretive tool kit to encompass certain substantive canons or to acknowledge ways in which substantive canons can be used to reinforce statutory purpose.