The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I saw this post at the "Re's Judicata" blog, written by Prof. Richard Re (University of Virginia), and found it very interesting; I asked Prof. Re whether I could repost it, and he graciously agreed:
The Court recently heard argument in Ysleta del Sur Pueblo v. Texas, a statutory-interpretation case about Indian tribes' ability to regulate or conduct games like bingo. But perhaps the most talked-about aspect of the case was a much more broadly applicable rumination by Justice Kagan. Here it is:
JUSTICE KAGAN: I'm about to take you outside the scope of this case, so I apologize beforehand. But Justice Alito raised what to me is an interesting question that I've been thinking about a good deal about what these substantive canons of interpretation are and when they exist and when they don't exist.
They're all over the place, of course. It's not just the Indian canon. Next week, we're going to be thinking about the supposed major questions canon. There are other canons.
I mean, if you go through Justice Scalia's book, you'll find a wealth of canons of this kind, these sort of substantive canons. Some of them help the government. Some of them hurt the government.
Is there any way that the government has of coming in and saying, like, how do we reconcile our views of all these different kinds of canons? Maybe we should just toss them all out, you know.
MR. YANG: Well –
JUSTICE KAGAN: I mean, I think kind of we should, honestly. Like, what are we doing here?
Justice Kagan has recently been the Court's most steadfast proponent of stare decisis. And that commitment to precedent has expressly extended to questions of method and interpretation, such as Auer deference and stare decisis itself. So for Kagan to suggest "toss[ing] out" all substantive canons—a set of legal principles that are indeed "all over the place"—is surprising.
What could explain this apparent change? Here are a few possibilities.
First, experience may have convinced Kagan that substantive canons cannot be "reconcile[d]," perhaps because they're contradictory in purpose or effect. Interestingly, this realist-seeming move could render Kagan even more textualist than Scalia, who (as she notes) made great use of substantive canons.
Second, Kagan may think that it is so essential to overrule "the supposed major questions canon" that she is prepared to reject any other legal principle that stands in the way. The bad reasoning and consequences of one substantive canon thus provide a strategic reason to ditch all the others, too.
Third, Kagan might finally have given up on trying to make strong stare decisis happen. Commentators have long speculated that Kagan has tried to take stare decisis very seriously so as to set an example or tone that could save Roe and other left rulings from being overruled. Perhaps that effort has finally failed.
All three explanations can be interlinked. For example, if Kagan now thinks that she can't win over key votes by relying on stare decisis, then perhaps it's time to appeal to the majority's textualism in the hope of slowing down the major question doctrine's march across the administrative state. And that strategy might be especially targeted at Justice Barrett, who—as Will Baude points out—has written an important article criticizing substantive canons. On this view, one contingent strategy is replacing another.
But Kagan's personal commitment to stare decisis has seemingly run so deep of late that a more fundamental change or disillusionment may be taking place. Perhaps Kagan views the Court as doing great harm precisely because it is walking away from its own textualist orthodoxy and supposed commitment to stare decisis. And if the majority isn't keeping faith with once-settled practices, why should anyone else?