The Supreme Court construed penal statutes in forty-three cases from the 2013 Term through the 2022 Term. In those cases, the Court tended to adopt narrow constructions, a preference consistent with several substantive canons of construction, such as the rule of lenity and the avoidance of constitutional vagueness concerns. Substantive canons were routinely included in party briefs, frequently raised during oral argument, and occasionally explicated in concurring opinions. Yet the Court did not rely on substantive canons in the vast majority of the narrow-construction cases. For example, the Court never firmly relied upon the rule of lenity--the substantive canon most often raised in briefs and at argument--to justify a narrow construction over the entire ten- Term period. Instead, the Court's rationale in these cases tended to be "ad hoc," in the sense that the Court based its narrow reading only on statute-specific ordinary-meaning analysis. That approach may be motivated by textualist suspicion of substantive canons or a desire to maximize interpretive discretion in future cases involving penal statutes. Whatever its cause, the Court's ad hoc approach has large-scale implications that perpetuate the enactment, enforcement, and interpretation of penal statutes in an expansive manner--undermining the rule of law by systematically increasing discretion for various actors who administer criminal law.
INTRODUCTION I. TEXTUALISM, SUBSTANTIVE CANONS, AND PENAL STATUTES II. THE SUPREME COURT'S CONSTRUCTION OF PENAL STATUTES A. Methods B. General Findings 1. Subject Matter for Narrow and Broad Constructions 2. Narrow Versus Broad Constructions over Time 3. Type of Defense Counsel 4. Substantive Canons in Narrow-Construction Cases C. Canon-Specific Findings 1. Specific Canons in Narrow-Construction Cases 2. Depth of Reliance on Substantive Canons D. Takeaways III. SOME EXPLANATIONS FOR AD HOC CONSTRUCTIONS A. Tension with Textualism B. Differences in How Substantive Canons Operate 1. Canons with an Ambiguity Trigger 2. Canons with a Vagueness Trigger or Presumption C. Retaining a Majority Through Passivity D. Interpretive Discretion IV. AD HOC CONSTRUCTIONS AND THE RULE OF LAW A. Legislatures B. Lower Courts C. Prosecutors D. Defense Counsel E. Police CONCLUSION APPENDIX: SUBSTANTIVE CANONS IN NARROW-CONSTRUCTION CASE MATERIALS
INTRODUCTION
With textualism now the dominant methodology at the Supreme Court, (1) scholarship on statutory interpretation "has taken an empirical turn," (2) testing some of textualism's basic assumptions (3) and examining the Court's use of various interpretive tools across large sets of decisions. (4) Yet this strand of scholarship tends to treat the Court's statutory interpretation decisions as a monolith, making no distinctions based on the subject matter of the statutes being interpreted. (5) Criminal law scholarship on the Court's interpretive methods, by contrast, is inherently subject-matter specific. But it tends toward theory, describing particular tools of interpretation and making normative arguments for why they should be used. (6)
This Article aims to tie those two strands of scholarship together by taking a hard look at the Court's cases involving the construction of federal penal statutes in all merits cases from the 2013 Term through the 2022 Term. That category of cases warrants special attention, not least because it makes up a significant portion of the Court's merits docket. The ten Terms studied saw forty-three merits cases involving the construction of penal statutes--accounting for nearly 7% of all fully briefed and argued merits cases the Court decided during that period. (7) Penal statutes also deserve special focus because they implicate distinct concerns, including those related to the principle of legality, fair notice, and arbitrary enforcement. (8) The ways in which the Court construes these statutes can have serious downstream effects on how criminal law is administered.
To be sure, the Court is focused in these cases on statutory construction of federal penal statutes, (9) while the vast majority of criminal adjudication occurs within the state system. (10) But the Court plays an important role in setting the interpretive culture for the methodology that both federal (11) and state courts (12) use when construing penal statutes. The Court's behavior in cases involving federal penal statutes thus helps to promote or reduce the use of various tools of interpretation at both the federal and state levels.
In addition, although the category of penal statutes studied here primarily comprises criminal statutes, it also includes statues that render citizens eligible for deportation, a "'particularly severe penalty,' which may be of greater concern" to the deportee "than 'any potential jail sentence.'" (13) The findings presented in this Article thus shed some light on the Court's approach in the immigration context.
The descriptive aim is to determine how often the Court adopts narrow constructions of penal statutes (relative to the positions advanced by the parties (14)) and what principles it considers when doing so. The Article presents a number of findings related to that goal. At the most basic level, it shows that the Court adopted narrow constructions of penal statutes nearly twice as often as it adopted broad constructions. And the Court's preference for narrow constructions strengthened over time: most of the broad constructions were adopted in the first four Terms studied, while narrow constructions dominated later Terms. (15) Notably, that recent increase in the narrow-construction rate coincided with a recent rise in criminal-defense representation by experienced Supreme Court counsel. (16)
The Court's preference for narrow readings is consistent with several substantive canons of construction, which encapsulate nonlinguistic considerations that point toward a particular result, such as the rule of lenity and the avoidance of constitutional concerns. Yet, in more than two-thirds of the narrow-construction cases, the Court did not rely on substantive canons. (17) That finding runs counter to the traditional view among statutory interpretation scholars that substantive canons "wield significant power" over case outcomes. (18) But it aligns with more recent criticisms of substantive canons voiced by some scholars and current Justices. (19)
In most of the narrow-construction cases, the Court based its narrow reading only on the ordinary meaning of the particular statute's text without appealing to substantive canons. These statute-specific rationales are "ad hoc," (20) in the sense that they do not provide generic principles of construction that can be widely applied in future cases involving other penal statutes. That is not to say that the Court's interpretive analysis in these cases was simplistic; to the contrary, it often involved sophisticated and resource-intensive analysis of dictionaries, statutory context, descriptive canons of interpretation, and other tools for determining linguistic meaning. (21) Most of the time, however, the Court's heavy reliance on ordinary-meaning analysis came at the expense of reliance on substantive canons (22) or any other distinct policy of interpretation that would consistently lean toward narrow constructions of penal statutes.
Even so, substantive canons that promote narrow constructions appear to have often played some role in the Court's decisionmaking process. Substantive canons were routinely included in party and amicus briefs, frequently raised during oral argument (often by a Justice), and occasionally explicated in concurring opinions. Yet, for whatever reason, a majority of the Court repeatedly purported to rest narrow constructions of penal statutes on ad hoc rationales. The Court typically took a passive approach to substantive canons raised in briefs or at argument--treating them as a mere afterthought, (23) explicitly relegating them to dicta, (24) or ignoring them altogether. (25) For example, the Court never firmly relied upon the rule of lenity--the substantive canon most often raised in the briefs and at argument--to justify a narrow construction over the entire ten-Term period.
The frequency with which substantive canons were raised may suggest that they did some persuasive work. Savvy Supreme Court litigators may have understood that raising these canons was worthwhile, even if the Court would be unlikely to employ them. That practice lends some credence to the longstanding notion that statutory interpretation arguments are more persuasive when built as "cable[s]" than as "chains." (26) A cable weaves together many threads, producing from multiple modalities a "cumulative strength." (27) A chain relies on only one modality, making it "no stronger than its weakest link." (28) As the Court has become increasingly committed to textualist methodology, its stated reasoning in statutory interpretation cases has become more chain-like--relying more heavily and exclusively on textualist tools that determinate semantic meaning. (29) The findings in this Article provide some reason to think that litigants have remained cable-like in their approach, (30) and that cable-like briefs may be good practice even when the Court is producing chain-like opinions. (31)
The Court's preference for ad hoc constructions may be motivated by textualist commitments that view substantive canons as inescapably judge made and policy driven. (32) The ad hoc approach may be thought to be more consistent with the rule of law values on which textualism is based. (33) It is also possible that the Court's preference for ad hoc constructions is a function of its composition: efforts to rely on substantive canons may ultimately be softened to retain the votes needed to hold together a majority, resulting in the pervasive passive approach to substantive canons in majority opinions. (34) Another possible...
