Jim Brudney and Larry Baum have posted this draft on SSRN. Here is the abstract:
This article is the first in-depth empirical and doctrinal analysis of differences in statutory interpretation between the courts of appeals and the Supreme Court. It is also among the first to anticipate how the Supreme Court’s interpretive approach may shift with the passing of Justice Scalia.
We begin by identifying several factors that may contribute to interpretive divergence between the two judicial levels, based on their different institutional structures and operational realities. We then examine how three circuit courts have used dictionaries and legislative history in three subject matter areas over the past decade, and compare these findings in detail to the interpretive approach taken by the Roberts Court in the same three fields.
We determine that the appeals courts have followed a protean approach, adapting their usage patterns in ways that differ substantially from patterns in the Supreme Court. Appeals court judges use dictionaries far less relative to legislative history than do the justices; moreover, we found no semblance of the distinctive dictionary culture that is prevalent on the Roberts Court. For legislative history, circuit courts use it regularly to resolve ambiguities, confirm apparent meaning, or simply explicate legislative intent, all without characterizing its legitimacy or systemic value.
For both dictionaries and legislative history, the courts of appeals’ eclectic approach differs markedly from the Supreme Court’s more self-consciously articulated methodological path. We suggest how certain sources of interpretive divergence contribute to these differences, notably the justices’ interaction with all their colleagues in every case and their experience as objects of continuing media and congressional attention, some of which reflects attention that carries over from the judicial confirmation process. We conclude that the eclecticism of the appeals courts is likely to limit judicial discretion more effectively than the Supreme Court’s current approach which favors clear interpretive rules or priorities that are applied on a presumptively consistent basis.