By Brian G. Slocum[*]
The main thesis of Daniel B. Rodriguez and Barry R. Weingast’s recent article, The Paradox of Expansionist Statutory Interpretations, is important: the voting decisions of legislators can be influenced by the activist statutory interpretations of courts. Specifically, the authors demonstrate that the broad interpretations of progressive legislation made by courts in the 1960s and 1970s undermined the legislative deals struck between ardent supporters of progressive legislation and the moderate legislators necessary for passage of the statutes. The authors claim the decisions involved “expansionist,” as opposed to accurate, interpretations because they extended the statutes beyond the critical legislators’ understanding of what the statutory language voted upon meant. Although these expansionist interpretations broadened the reach of important progressive legislation, they had the effect of discouraging moderate legislators from supporting progressive legislation and are partly to blame for the current polarization of Congress and the paucity of such legislation.
Rodriguez and Weingast explain that courts in the 1960s and 1970s were able to achieve expansionist interpretations of progressive legislation by misusing legislative history to support inaccurate conclusions about the intent or purpose of Congress. While the article’s insights about expansionist interpretations and the misuse of legislative history are an important contribution to statutory interpretation scholarship, the interpretive mistakes made by courts are largely different now than in the 1960s and 1970s. For some time, the dominant trend has been for judges to rely more on rules of interpretation that typically narrow statutory meaning and less on pragmatic analysis or conclusions about likely congressional intent or purpose. Thus, if progressive social legislation were enacted today, courts would likely not engage in the same improper expansionist interpretations as they did in the past. They would, however, likely engage in improper contractionist interpretations that narrow the statutes beyond the critical legislators’ understanding of what the statutory language voted upon meant.
This Essay criticizes the current judicial predilection for contractionist statutory interpretations. Part I explains how the rules of statutory interpretation are currently geared towards producing narrow, often contractionist, statutory interpretations. Part II uses the Supreme Court’s recent decisions in Zadvydas v. Davis, and Clark v. Martinez, to illustrate the problems raised by contractionist interpretations. This Part explains that while contractionist interpretations may not discourage moderate legislators from supporting legislation, they are problematic because they are inconsistent with the judiciary’s role as “faithful agents” of Congress.