What is it that a judge interprets in a statutory interpretation case? This Article shows that the answer to this question is surprisingly complex. First, the text that a judge interprets is not simply given. Rather, judges must select texts to interpret. Second, the background against which a judge views that text is also not given. Rather, judges situate the texts they interpret within unique, case-specific contexts that they construct from a diverse and unpredictable variety of factors. Selecting and situating: these form the infrastructure of interpretation. Each requires judges to exercise creativity and choice. But opinions tend to present each instead as predictable and inevitable: not a creative and agonistic process, but a basis for assertions of determinate meaning. This Article illuminates how contestation and indeterminacy permeate legal interpretation even as judicial opinions seek to fix and finalize meaning.

How do judges explain why they select the texts they do? How do they justify situating those texts in some factors but not others? How do they substantiate the way they characterize the factors they choose? Asking how opinions address their selecting and situating choices reveals how very unevenly they fulfill their basic obligation of giving reasons for their conclusions. Recognizing selection and situation opens up other lines of analytic and normative inquiry as well. For instance, it facilitates evaluations and comparisons that do not depend on judges’ expressed preferences or commitments. It also provides a robust way to analyze judges’ statutory interpretations with respect to the normative questions that interest a particular commentator, instead of the normative values prepackaged by prominent theories like textualism and purposivism.

Indeed, my approach highlights the limitations of those theories. Purposivism and textualism do not recognize that judges select text to interpret and drastically oversimplify how judges situate that text, leaving judges with little guidance about the very choices on which interpretation is based. This failure may not be too surprising: these theories prescribe what interpreters ought to do, rather than explain what they, in fact, do. In contrast, my contribution helps us understand the practices through which legal actors justify interpretations, claim legitimacy, and set the terms of valid legal argument.


I.  Reframing Interpretation

Interpretation requires an object: a text, an act, a concept, a something to be interpreted. An interpreter must pick out that object. How is that picking out accomplished? Studies of legal interpretation rarely ask. Commentators argue about interpretive approaches, but tend to treat interpretation’s object as given. It is not. Legal interpreters select the objects they interpret. They are not entirely free in making such selections, of course. Like all communicators, they work within the constraints of their genre; and like all legal actors, they are subject to society’s understanding of what constitutes legitimate action. But they are not entirely bound, either. As communicators, they can creatively deploy and combine a variety of rhetorical moves. And as legal actors, they help shape the very parameters of legitimation to which they are subject.

An object of interpretation, moreover, needs a background to make its contours visible. Where does this background come from? Commentators agree that context matters for interpreting legal language, but rarely ask how that context comes to be. They sometimes talk as though interpreters were limited to a small set of preexisting contexts, each tied to some set of objects. Far from it. To situate the thing they interpret against a background that gives it shape and meaning, legal interpreters cobble together diverse factors with unpredictable contours. They attribute to these factors particular attributes, and claim—explicitly or not—that each is relevant to the interpretive project at hand. In this work also, they are both creative and constrained: as bound and as free as they are in the work of selecting the object of interpretation in the first place.

In what follows, I elaborate on these claims. Focusing on statutory interpretation opinions written by Supreme Court justices,1 I show how judicial opinions select text to interpret and how they situate that text within contexts they create. In the genre of the judicial opinion, these creative moves are often presented as inevitable or obvious: expressions of indisputable fact rather than the claims and arguments that they really are. I suggest instead that these two conceptual moments—selecting and situating—are the constitutive forces of interpretation. The assertions and conclusions that opinions call interpretation are merely their precipitates.

I take judicial opinions as ethnographic objects: artifacts that both reflect and affect cultural values and norms. In other words, I analyze not what judges say about themselves, but how judicial opinions create their effects. To select what to interpret, opinions pick and choose among statutory phrases and concepts raised in litigation. Their selected texts open up some interpretive arguments while closing off others. This process, moreover, happens independently of a justice’s preference for a particular theory of interpretation; selecting is, in a sense, conceptually prior.2

To situate the texts they have selected, opinions draw on a wide range of sources, both legal and nonlegal, to create contexts unique to each case. Legal sources turn out to be sufficiently diverse to support divergent interpretations.3 And, despite the implications of doctrine, nonlegal sources turn out to be no less decisive.4 Moreover, when an opinion situates a text, it makes claims about relevance and reality. It posits that the factors it uses are the most useful to interpretation, and that its characterization of those factors is accurate. These claims are central to an opinion’s reason-giving role, yet the classic opinions I discuss here vary dramatically in how they support their claims about both relevance and reality.5

The prevailing theories of statutory interpretation, textualism and purposivism, provide little analytic purchase on these fundamental interpretive practices.6 Neither recognizes that judges select texts to interpret. While they acknowledge that judges situate text in context, each specifies prefabricated contexts for judges to use—an offer the opinions examined here consistently turn down. These theories prescribe how judges ought to interpret, rather than analyzing how they actually do so.7 The problem with textualism and purposivism, I suggest, is not just that most judges adopt a little of both. It is that these theories ignore the infrastructure of interpretation. This makes it especially unfortunate that so much scholarship focuses on these theories rather than on how opinions structure and support their interpretations.

In contrast, recognizing selecting and situating as key conceptual moments in statutory interpretation helps explain how opinions stake their claims. It also provides a firm, flexible basis for a range of normative evaluations not hemmed in by the predetermined stances of interpretive theories. Rather than worrying about whether an opinion conforms to a predetermined set of prescriptive tenets, commentators can use my approach to evaluate the thoroughness of an opinion’s reason-giving, the propriety of its relative valuation of legal and nonlegal sources, the desirability of its image of the law, and much more. Directly recognizing selecting and situating allows for normative evaluation of—and normative debate about—the underlying values that adjudication serves.8

Finally, drawing on scholarship in linguistics, anthropology, and political theory, my approach illuminates how judicial opinions exert effects on the world. Selecting constitutes a particular text as the focus of interpretation; situating constitutes particular factors as relevant to that interpretation. Presenting these things as predetermined, judicial opinions routinely give the impression that their conclusions are inevitable or determinate, as though opinions could escape from the ongoing semiosis of the common-law system and of democratic practice itself. This false sense of finality suggests that legal language forms a discourse apart: a separate sphere that is somehow spared the uncertainties and instabilities that characterize other forms of communication.

Selecting and situating help us see the speech act at the heart of legal interpretation.9 Just as arguing over meaning expresses “the impulse to keep the contest going,” attempts to fix meaning express the countervailing “impulse[ ] of political life . . . to be finally freed of the burdens of contest.”10 My analysis brings both impulses into view at the same time. And it suggests that it is precisely through the indeterminacy of meaning that people claim, contest, and set the conditions for legal legitimacy.

  • 1. I choose this focus for several reasons. Supreme Court opinions set not just the doctrine but the tone for the judiciary, displaying modes of selecting and situating that can be taken up by other judicial interpreters. Their frequent dissents and concurrences help me highlight these practices’ creative nature. And the familiarity of many of the cases I discuss allows me to consider why selecting and situating have not previously been recognized as building blocks of interpretation. Of course, my focus is necessarily partial. The Supreme Court is a unique institution; lower courts may display their own selecting and situating patterns. Statutes are just one thing that legal actors interpret; selecting and situating may work differently with other legal objects. And courts are certainly not the only interpreters of statutes; administrative agencies, among others, play a central interpretive role in the modern state. See generally Jerry L. Mashaw, Norms, Practices, and the Paradox of Deference: A Preliminary Inquiry into Agency Statutory Interpretation, 57 Admin L Rev 501 (2005); Peter L. Strauss, When the Judge Is Not the Primary Official with Responsibility to Read: Agency Interpretation and the Problem of Legislative History, 66 Chi Kent L Rev 321 (1990). Still, I hope that my discussion here contributes both to the literature on statutory interpretation and to an evolving understanding of legal interpretation more generally.
  • 2. This is why selecting different focal texts is one way that opinions that seem to follow the same interpretive approach can arrive at different interpretive conclusions. See Part II.A.
  • 3. See Part III.A.
  • 4. See Part III.B.
  • 5. See Part III.C.
  • 6. From the vast literature elucidating and debating these theories, I draw particularly on, for example, Richard H. Fallon Jr, The Meaning of Legal “Meaning” and Its Implications for Theories of Legal Interpretation, 82 U Chi L Rev 1235 (2015); Robert A. Katzmann, Judging Statutes (Oxford 2014); Richard H. Fallon Jr, Three Symmetries between Textualist and Purposivist Theories of Statutory Interpretation—and the Irreduc­ible Roles of Values and Judgment within Both, 99 Cornell L Rev 685 (2014); John F. Manning, What Divides Textualists from Purposivists?, 106 Colum L Rev 70 (2006); Lawrence M. Solan, The New Textualists’ New Text, 38 Loyola LA L Rev 2027 (2005); Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton 1997) (Amy Gutmann, ed); William N. Eskridge Jr, Dynamic Statutory Interpretation (Harvard 1994); and T. Alexander Aleinikoff, Updating Statutory Interpretation, 87 Mich L Rev 20 (1988).
  • 7. See Part IV.A. See also William N. Eskridge Jr and Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan L Rev 321, 322 (1990) (“[E]ach theory rests upon and subserves important values that should be considered when interpreting statutes.”).
  • 8. See Part IV.B. Professors Daryl J. Levinson and Mark Kelman have each shown how expanding or contracting a view along one axis of interpretation, such as time, can change a legal outcome in ways doctrine does not recognize. See Daryl J. Levinson, Framing Transactions in Constitutional Law, 111 Yale L J 1311, 1316–18, 1326–32 (2002); Mark Kelman, Interpretive Construction in the Substantive Criminal Law, 33 Stan L Rev 591, 600–16 (1981). Like Levinson and Kelman, I hope to “expos[e] the substantive issues and judgments buried beneath empty and anodyne doctrinal [and theoretical] rhetoric.” Levinson, 111 Yale L J at 1314 n 2 (cited in note 8). And I, too, show how legal interpretation depends on an interpreter’s frame. The frames I present, however, do not come preconstructed: there is no one axis—time, group, and so on—along which a frame becomes larger or smaller. Rather, I highlight the essential bricolage of interpretation.
  • 9. See Part IV.C. Utterances that constitute the conditions they refer to are known as creative utterances. Michael Silverstein, Shifters, Linguistic Categories, and Cultural Description, in Keith H. Basso and Henry A. Selby, eds, Meaning in Anthropology 11, 33–34 (New Mexico 1976) (distinguishing between utterances in which an “aspect of the speech situation [is] presupposed by the sign token,” such that one cannot understand a word without some shared knowledge about its situation of use, and a creative usage, which “make[s] explicit and overt the parameters of structure of the ongoing events” and brings some aspect “into sharp cognitive relief”). The most widely known kind of creative utterance is the performative or speech act. See J.L. Austin, How to Do Things with Words 4–7 (Harvard 1962); John R. Searle, Speech Acts: An Essay in the Philosophy of Language 16–19 (Cambridge 1974).
  • 10. Bonnie Honig, Political Theory and the Displacement of Politics 2, 14 (Cornell 1993).