“LET SLEEPING LEGAL DOGS LIE”: DECODING THE SUPREME COURT’S TREATMENT OF CIRCUIT COURT CONSENSUS ABOUT FEDERAL STATUTORY MEANING

In the vast majority of federal cases, interpretive decisions by the U.S. Courts of Appeals are never reexamined by the U.S. Supreme Court. Over time, the circuit courts may also come to reach a longstanding, substantial consensus about the meaning of the words in a particular federal statute. Practically speaking, these circuit court decisions become the last word. For decades, the public and the legal community rely on these interpretations as they shape their behavior in society and in litigation settings.

Despite the odds, in several cases, the Court has chosen to reexamine such a consensus about federal statutory meaning. In these cases, the Justices have often acknowledged the existence of some form of consensus, without providing clear guidance as to how the consensus served as an indicator of meaning among other tools of statutory interpretation.

This Note argues that under certain circumstances, the use of circuit consensus as one indicator of meaning promotes stability, predictability, and coherence in the development of the law and in legislative–judicial relations. It offers a three-part framework for incorporating circuit consensus into federal statutory interpretation.

The full text of this Note can be found by clicking the PDF link to the left.

* J.D. Candidate 2023, Columbia Law School. The author would like to thank Professor Peter L. Strauss for his invaluable guidance and insight and the staff of the Columbia Law Review for their excellent editorial support.

Introduction

With a unanimous (8-0) opinion, the Supreme Court observed in New Prime Inc.:

“[I]t’s a ‘fundamental canon of statutory construction’ that words generally should be ‘interpreted as taking their ordinary . . . meaning . . . at the time Congress enacted the statute.’” After all, if judges could freely invest old statutory terms with new meanings, we would risk amending legislation outside the “single, finely wrought and exhaustively considered, procedure” the Constitution commands. We would risk, too, upsetting reliance interests in the settled meaning of a statute. 1 New Prime Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019) (alterations in original) (citations omitted) (first quoting Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018); then quoting Immigr. & Naturalization Serv. v. Chadha, 462 U.S. 919, 951 (1983)).

The proposition that words in a statute should take their ordinary meaning from the time that Congress enacted the statute appears to be generally accepted by the modern Court. 2 Justice Brett Kavanaugh took no part in the case. Id. at 535. Justice Ruth Bader Ginsburg concurred. She agreed with the Court’s proposition but noted that “[w]ords in statutes can enlarge or contract their scope as other changes, in law or in the world, require their application to new instances or make old applications anachronistic.” Id. at 544 (alteration in original) (internal quotation marks omitted) (quoting West v. Gibson, 527 U.S. 212, 218 (1999)). Justice Elena Kagan has observed that “we’re all textualists now.” Harvard L. Sch., The 2015 Scalia Lecture: A Dialogue With Justice Elena Kagan on the Reading of Statutes, YouTube, at 08:29 (Nov. 25, 2015), https://www.youtube.com/
watch?v=dpEtszFT0Tg (on file with the Columbia Law Review). But the federal district courts and the federal courts of appeals engage in methods of statutory interpretation as well. And, practically speaking, “in all but a miniscule number of cases,” the Supreme Court never gets involved, making the courts of appeals “the final expositors of federal law in their geographical region” in most cases. 3 See Thomas E. Baker & Douglas D. McFarland, The Need for a New National Court, 100 Harv. L. Rev. 1400, 1406 (1987) (observing how the Court in 1984 reviewed only 0.56% of circuit court decisions, which effectively made 99.44% of the decisions “free from review”). The Roberts Court heard an average of seventy-six cases each Term between 2005 and 2021, and the Court heard sixty-five cases in 2021. 4 See FAQs—General Information, Sup. Ct. of the U.S., https://www.supreme
court.gov/about/faq_general.aspx [https://perma.cc/59E3-MLUQ] (last visited Jan. 11, 2022) (“The Court receives approximately 7,000-8,000 petitions for a writ of certiorari each Term. The Court grants and hears oral argument in about 80 cases.”); Harold J. Spaeth, Lee Epstein, Andrew D. Martin, Jeffrey A. Segal, Theodore J. Ruger & Sara C. Benesh, 2022 Supreme Court Database, Version 2022 Release 01 (Nov. 2, 2022), http://scdb.wustl.edu/data.php (on file with the Columbia Law Review) (presenting data on Supreme Court cases, with consolidated cases and cases with multiple issues or legal provisions included once). The author calculated this average (75.88 cases) using Supreme Court cases heard by the Roberts Court from 2005 to 2021. This average has decreased over the past few decades: The Rehnquist Court heard an average of 108 cases each Term. 5 See Spaeth et al., supra note 4. The author calculated this average (107.58 cases) using Supreme Court cases heard by the Rehnquist Court from 1986 to 2004. In contrast, the number of circuit court opinions and orders in cases terminated on the merits have increased significantly over the past few decades. In 1990, the circuit courts filed 21,006 opinions and orders, and in 2021, the circuit courts filed more than 30,000. 6 U.S. Cts., Table 2.5: U.S. Courts of Appeals—Opinions and Orders Filed, by Type, in Cases Terminated on the Merits After Oral Hearing or Submission on Briefs During the 12-Month Periods Ending June 30, 1990, and September 30, 1995 Through 2021, https://www.uscourts.gov/sites/default/files/data_tables/jff_2.5_0930.2021.pdf [https://perma.cc/SH58-DFHL] (last visited Jan. 9, 2023). The circuit courts filed 30,600 opinions and orders in cases terminated on the merits after oral hearing or submission on briefs from September 30, 2020, to September 30, 2021. Id. The data set excludes the U.S. Court of Appeals for the Federal Circuit. Id. Assuming, arguendo, that all seventy-six cases involved the Court’s reexamination of a circuit court decision, the Court would be able to review only 0.25% of roughly 30,000 decisions each year. For the vast majority of cases, circuit court decisions “have become as pure as ivory snow.” 7 Baker & McFarland, supra note 3, at 1406; see also Peter L. Strauss, One Hundred Fifty Cases Per Year: Some Implications of the Supreme Court’s Limited Resources for Judicial Review of Agency Action, 87 Colum. L. Rev. 1093, 1098–99 (1987) [hereinafter Strauss, One Hundred Fifty Cases Per Year] (finding that a court of appeals judge’s “opinions, on average, will come under scrutiny only two or three times in a decade”); About the U.S. Courts of Appeals, U.S. Cts., https://www.uscourts.gov/about-federal-courts/court-role-and-structure/
about-us-courts-appeals [https://perma.cc/P2JX-2DS6] (last visited Jan. 11, 2022) (“[T]he decisions made by the [circuit courts] are the last word in thousands of cases.”).

In some cases, the circuit courts may reach a longstanding, substantial consensus about the meaning of the words in a federal statute. For decades, the public and the legal community may rely on that meaning as effectively “settled” by this consensus. Individuals might shape their behavior in society and in litigation settings in accordance with this understanding. The geographical scope of this public reliance on a particular meaning may be wide-reaching, perhaps even nationwide.

Despite the odds, the Court has, on several occasions, reexamined statutory meaning that had arguably been settled by the circuit courts. And the Court has found that the settled meaning failed to match the “ordinary . . . meaning . . . at the time Congress enacted the statute.” 8 New Prime Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019) (alterations in original) (internal quotation marks omitted) (quoting Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018)). When these two possible meanings differ, are there any circumstances in which the existence of a longstanding interpretation, combined with decades of reliance upon this interpretation, outweigh the argument for strict adherence to ordinary meaning at the time of enactment? The Court has suggested different answers to this question over the past fifty years.

This Note serves to assist in understanding how a “circuit consensus” may be considered as an indicator of meaning in federal statutory interpretation. 9 This Note explores the concept of circuit consensus about federal statutory meaning. Circuit consensus about federal statutory meaning is narrower in scope than both circuit consensus about the meaning of all statutes and circuit consensus about any question of law heard by the circuit courts. There may be different considerations for circuit consensus about the meaning of state statutes because the Court’s normal practice is to defer to a circuit court’s interpretation and application of state law. See Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1415 (2019). It also seems unlikely, if not impossible, that there would be a consensus about the meaning of a state statute. State laws are generally interpreted by courts within their circuit. Further, the Court’s treatment of circuit consensus about any question heard on appeal may significantly differ from treatment of consensus about statutory meaning. For example, patent decisions have “usual finality” in the circuit courts. See Westinghouse Elec. & Mfg. Co. v. Formica Insulation Co., 266 U.S. 342, 349 (1924). In this Note, “circuit consensus” means a consensus of U.S. Courts of Appeals to have considered the interpretive issue. A circuit consensus is effectively the opposite of a “circuit split.” 10 A “circuit split” occurs when “two or more courts of appeals have decided the same legal issue differently.” Jonathan M. Cohen & Daniel S. Cohen, Iron -ing Out Circuit Splits: A Proposal for the Use of the Irons Procedure to Prevent and Resolve Circuit Splits Among United States Courts of Appeals, 108 Calif. L. Rev. 989, 990 (2020). A “circuit consensus interpretation” means an interpretation of a federal statutory provision that has achieved a circuit consensus.

A close examination of the words of the Justices, the institutional principles underlying the roles of the Court and Congress, and the values that support the orderly development of the law suggests that under certain circumstances, the Court should “let sleeping legal dogs lie.” 11 Milner v. Dep’t of the Navy, 562 U.S. 562, 593 (2011) (Breyer, J., dissenting). Part I of this Note analyzes how Justices have considered circuit consensus about federal statutory meaning over the past fifty years. Part II examines the tensions that may arise when circuit consensus is unsettled by favoring a different meaning of the statutory language. Unsettling circuit consensus may undermine pragmatic rule-of-law values, such as protection of the public’s reliance interests; disrupt institutional principles underlying the relationship between the Court and Congress and their respective roles; and exhaust limited legislative and judicial resources. To address these practical and values-based concerns, Part III offers a three-part framework drawn from how the Justices have considered circuit consensus as an indicator of statutory meaning. The first component of the framework identifies four circumstances that help identify a circuit consensus about meaning. The second component examines how circuit consensus could be weighed in statutory interpretation. The third component further incorporates circuit consensus interpretation into statutory interpretation analysis by describing it as a form of “settled meaning,” drawing from observations by the Court.