Anita Krishnakumar has posted this draft on SSRN. Here is the abstract:
This Article offers the first targeted study of the Supreme Court’s use of the canons and other tools of statutory interpretation in a “dueling” manner — i.e., to support opposing outcomes in both the majority and dissenting opinions in the same case. Taking its inspiration from Karl Llewellyn’s celebrated list of canons and counter-canons, the Article seeks to examine how often and in what ways the members of the Roberts Court counter each other’s references to particular interpretive tools when disagreeing about the proper reading of a statute.
Many of the Article’s findings are unexpected and undermine the assumptions made by some of the most prominent theories of statutory interpretation. Textualists, for example, long have urged the rejection of interpretive tools such as legislative history, statutory purpose, and congressional intent on the ground that such tools are indeterminate and can be manipulated to support almost any statutory construction favored by the judge. Moreover, textualists have advocated the use of other interpretive tools — e.g., statutory text / the plain meaning rule, the whole act rule, language canons, other statutes — on the theory that these tools are neutral and will constrain judges to reach the correct or “best” reading of the statute. But the data from the Roberts Court’s dueling canon cases reveals that many of textualism’s most-favored interpretive tools are at least as susceptible to dueling use as the tools that textualists love to denigrate. The study shows, for example, that the justices duel extensively over the meaning of statutory text but duel at low, virtually identical, rates over legislative history, purpose, intent, dictionary references, the whole act rule and language canons.
The study also reveals some unsurprising data. For example, the canons do not seem capable of constraining the judges to vote against ideology. And non-canon tools of analysis, including precedent and practical consequences reasoning, lead to higher rates of dueling than do most traditional canons or tools of statutory interpretation. After reporting the data, this Article examines the theoretical implications of the justices’ relatively infrequent, though ideologically-slanted, dueling canon use.