Don't Focus Solely on the Constitution

By Ethan J. Leib and Michael Serota, USA Today

The political rhetoric and popular media coverage of Elena Kagan's confirmation hearings has been filled with significant debate over matters of constitutional law. We've heard questions and answers (or non-answers) about the freedom of speech, about executive power, about balancing national security against constitutional rights, about guns, about religion, and about abortion. No doubt this form of inquiry is appropriate; senators are entitled to get some handle on Kagan's constitutional vision, even if President Obama's nominating her tells them most of what they need to know. Many of the Supreme Court's most controversial decisions involve questions of constitutional law, and they are the types of judicial opinions that are most salient to the public. The Senate Judiciary Committee has been appropriately doing due diligence for the people, whose interests they represent.

But what the people and the senators doing the questioning should know — but seem not to — is that the Supreme Court's docket is chock full of very consequential cases for Americans' lives that do not involve constitutional interpretation at all. A quick look at the statistics published annually by the Harvard Law Review for the last three terms reveals that more than half of Justice Kagan's work on the Court would be filled with questions of statutory interpretation, or the way in which judges derive meaning from the text of statutes. And yet we spend very little time pressing justices-to-be on how they would interpret the primary set of legal rules that govern life in America.

Difficult questions

In the abstract, statutory interpretation sounds simple enough: just apply the written statute to the facts in the same way that the proverbial umpire calls balls and strikes. In reality, however, most of the statutes that make it all the way to the Supreme Court provide no easy answers. And the "interpretation wars" surrounding statutes are no less vituperative than the wars about constitutional interpretation, even if they are hidden from view from the average American. Yet the average American's life is touched at least as much by issues of statutory interpretation — statutes control our paychecks, our working conditions, our criminal justice system, our social services programs, our healthcare, our pensions, the health of our economy – as it is touched by constitutional issues.

Who can you sue and for what when your pension manager mismanages your funds? That's a statutory question. How does federal education money get distributed to the states? Statutory question, again. What constitutes "discrimination" that allows minorities and women to sue employers under our civil rights protections? Recent statutory interpretation cases before the Supreme Court have controlled the answers to these questions, not constitutional law.

Although you are unlikely to ever hear conservative or liberal pundits discuss methods of statutory interpretation, countless pages in judicial opinions, law reviews and hours in the law school classroom have been dedicated to heated debate over the appropriate ways in which judges derive meaning from statutes. As a general matter, there are three main schools of thought. One approach, known as "textualism," emphasizes the words of the statute alone, while another, known as "intentionalism," emphasizes Congress's intent in passing the statute as evidenced in its legislative history (the recorded record of congressional debates). A third approach, known as "purposivism," emphasizes a statute's overriding purpose as the benchmark for hard cases, which seeks historical context and an assessment of the mischief a statute is targeted to ameliorate. There are strong arguments for and against each of these three approaches (and permutations thereof), and the approach chosen is often — though not always — outcome-determinative when it comes to the cases before the Supreme Court.

Divining meaning

Finally, there are also "rules of thumb" that judges often use to divine meaning — but that don't quite qualify as "law," so routinely fall below the radar in our assessment of judicial nominees. For example, some judges (like Justices Ruth Bader Ginsburg and Antonin Scalia) take what is called the "Rule of Lenity" very seriously and think criminal defendants should get the benefit of any textual ambiguity that arises in a criminal statue. Others (like Justices Stephen Breyer and John Paul Stevens) think that if congressional intent in a statutory context is reasonably clear, defendants must suffer the consequences unless a "grievous ambiguity" arises in the application of a law. These conflicting positions on statutory approaches not only lead to more interesting alliances than the often-discussed 5-4 constitutional decisions that neatly track conservative/liberal positions, but they too are often outcome-determinative.

Thus, statutory interpretation matters a lot and has significant consequences for the everyday lives of Americans — and we can't know Kagan's approach without asking. Although the now infamous Robert Bork debacle makes it seem less and less likely that nominees will provide their actual views on substantive matters of law, we can and should demand to know how they reason through statutory texts to find meaning. Instead of focusing on the constitutional debates surrounding abortion and guns — domains for which Kagan surely has ready-to-go scripted answers — it is time to shine a spotlight on the unsung but equally consequential territory of our republic of statutes.

Ethan J. Leib is a Visiting Associate Professor of Law at UC-Berkeley and is a Professor of Law at UC-Hastings College of the Law; Michael Serota, a recent graduate of UC-Berkeley Law, will be clerking for the U.S. Court of Appeals for the Armed Forces this fall.