Michael Showalter (Independent) has posted The Supreme Court Versus The Construction Zone: The Justices Reject Law-Runs-Out Theory (George Mason Law Review, forthcoming) (19 pages) on SSRN. Here is the abstract:
We’re all originalists and textualists now—when the text is clear. But there remains deep disagreement about whether original understanding controls when legal text doesn’t provide an incontestably clear answer. The U.S. Supreme Court’s Chevron doctrine, for example, held that a legal question of interpretation becomes a policy question whenever a statutory text has multiple reasonable readings. Justice Elena Kagan elaborated this theory in 2019, asserting that when there is interpretive uncertainty, the law has “run out” and “policy-laden choice” is all that is left. And some constitutional theorists have similarly asserted that interpretive uncertainty means that the law has “run out” and judges must enter a “construction zone” in which “political,” “normative” considerations apply.
In a series of Summer 2024 cases, the Supreme Court forcefully rejected the law-runs-out theory. Overruling Chevron in Loper Bright v. Raimondo, the Court reestablished the constitutional principle that the interpretation of legal text always concerns law and not policy. Judges facing uncertainty about statutory meaning, the Court wrote, may not “throw up their hands” because the law has “supposedly ‘run out.’” Three days later, the Court practiced this principle in Corner Post v. Federal Reserve by focusing exclusively on law despite interpretive disagreement. The lower courts had focused on policy concerns rather than statutory text, and at oral argument Justice Kagan defended the lower courts by asserting that “there’s not much in the text to look at.” But the Court’s majority opinion methodically examined the linguistic meaning, background cluster of ideas, and precedent surrounding the pertinent statutory phrase. The concurring opinions in United States v. Rahimi, meanwhile, reject law-runs-out theory in the constitutional context.
The Supreme Court rejected law-runs-out theory because Chevron, Justice Kagan, and law-runs-out scholars could not reconcile law-runs-out theory with the Loper Bright justices’ originalist commitments. The modern originalist movement began as a counterrevolution against perceived judicial policymaking. A theory compelling judicial policymaking, therefore, was never likely to succeed at this Court.
Posted at 6:25 AM