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.
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.
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.
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.
This average has decreased over the past few decades: The Rehnquist Court heard an average of 108 cases each Term.
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.
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.”
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.”
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.
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.”
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.”
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.