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Citation: 80 Geo. L.J. 565 1991-1992

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Limitation of Statutes: Strategic

Statutory Interpretation
JOHN FEREJOHN*
AND BARRY WEINGAST**

The purpose of this paper is to examine the effects of judicial review on the
conduct of democratic government. In our view, court action that determines the meaning of statutes fundamentally affects the deliberative
processes in the other branches. By adopting one set of interpretive practices
or conventions rather than another, courts give both statutes and congressional deliberations greater or lesser effect, and, we suggest, enhance or diminish the qualities of the democratic process. There is broad agreement
across the political spectrum, both inside and outside the legal community,
that these qualities need protection from a variety of corrupting influences
originating outside (private interests) as well as inside (venal officials)
government. 1
Over the last two decades, a number of studies of legislatures have greatly
enriched our portrait of congressional life. It is now generally understood
that the activities associated with making law are only a part of the life of the
average member of Congress and that institutions and practices apparently
devised for the purpose of producing statutes are often better understood in
other ways. 2 The main claim of this modern literature is that members of
Congress enjoy their life in Washington and the powers and perquisites that
go with it and that they arrange their activities in order to ensure that they
are able to retain their hold on office. Congressional institutions and practices-congressional offices, staffs, committees, formal procedures-are, in
this view, arranged to suit the reelection needs of the members rather than
the requirements of rational and deliberate lawmaking. From this perspective statutes seem almost to be epiphenomenal congressional creations.
The implications of this research for understanding congressional institutions and practices are far-reaching and profound. It is no longer possible to
assume that Congress is simply a deliberative institution devoted wholly to
determining the best course of public action and putting it into statutory
* Patrick Suppes Family Professor in Humanities and Social Sciences, Stanford University; Senior Fellow, Hoover Institution, Stanford University.
** Senior Fellow, Hoover Institution, Stanford University.
1. See, e.g., RONALD DWORKIN, A MATTER OF PRINCIPLE 9-32 (1985); THEODORE LowI, THE
END OF LIBERALISM 92-105 (2d ed 1979).
2. Important seminal works include RICHARD FENNO, HOME STYLE (1978); MORRIS P. FIORINA, CONGRESS: KEYSTONE OF THE WASHINGTON ESTABLISHMENT
CONGRESS: THE ELECTORAL CONNECTION (1974).

(1977);

DAVID MAYHEW,

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[Vol. 80:565

commands. This is not to say that all members of Congress are venal and
concerned only with gaining and holding power, nor that real deliberation
does not take place, nor that good laws are not enacted. Rather, we must
recognize that the structure of the constitutional system confers significant
incentives on legislators to shirk their policy-making responsibilities in favor
of electoral pursuits. While not every legislator succumbs to these temptations, enough do so that the office-seeking theory of politics provides both a
powerful explanation and an indictment of congressional institutions and
practices.
As troubling as this analysis of congressional incentives is, it rests on a
very incomplete depiction of the policy-making process, both within the legislature and between the legislature and the other branches of government.
The fact that legislators are tempted to engage in electorally relevant action
rather than legislation follows essentially from the fact that legislation is a
public good which must be jointly supplied by a large number of legislators.
To some extent, congressional institutions themselves have evolved to address this collective action problem. Congress has allocated its legislative
work to smaller and smaller bodies and found ways to place responsibility for
action on particular members. While these practices do not completely solve
the collective action problem, they can work to counter it. At the same time,
however, the devolution of legislative authority to committees introduces
new distortions in the policymaking process if the preferences of committee
members depart significantly from those of their chambers.
More significant, from the point of view of this paper, is the lack of attention to the effects ofjudicial review on legislative incentives. We argue in this
paper that courts can, by their choice of strategies of judicial review, exercise
an important ameliorative effect on the incentive structure of the legislature.
Moreover, when these effects of judicial review are recognized, we can give a
new interpretation of the role of committees within the legislative process.
Our argument relies on two facts: that legislatures, executives, and courts
act within an interconnected system; and that it is impossible to assess the
actions of one constitutional actor without contemplating the reactions of the
others. Furthermore, the time periods over which these interactions take
place are long enough that the composition and preferences of these various
agents cannot be taken as fixed and immutable. Thus, by the time that a
court (or an agency) comes to interpret a statute, the legislature that enacted
it has generally been replaced by a succeeding or "sitting" legislature.
Whether or not these legislatures are situated closely together in time, electoral shifts and changes in social conditions generally imply that they will have
different policy preferences.
This dynamic tension between enacting and sitting legislatures is an enduring source of conflict in any actual democracy, leading legislatures constantly

1992]

STRATEGIC STATUTORY INTERPRETATION

to seek ways to bind their successors. 3 While the process of statutory interpretation usually involves determining the "meaning" of a statute by appealing to some shared interpretive conventions or somehow discerning the
"intent" of its authors, interpretation also has the effect of arbitrating disagreements between these two legislatures. It is this effect that concerns us
here. We show that by interpreting statutes in a particular manner, thereby
favoring one legislature over another, courts profoundly affect the kind of
democracy that is practiced in the more overtly political branches.
Thus, our argument is both positive and normative. Positively, we claim,
courts can affect the quality of deliberation in the legislative process. We
show that the choice of interpretive postures can affect the incentives that
members of Congress face in deciding what to do. 4 Judicial interpretation
can affect these choices by enhancing or diminishing the power of statutesthe words of the enacting legislature-to affect the course of policy. Normatively, we assert that enhancing the efficacy of statutes is a fundamental value
in a democracy because formally enacted statutes, produced according to
public and fair procedures, are the best expressions we have of public
5
judgments.
We investigate the choice of strategies of judicial review within a simple
political model of judicial decisionmaking. Courts and legislatures are engaged in a process of sequential interaction. 6 Congress enacts statutes and
courts interpret them, but Congress is not always silent on how its actions
are to be interpreted. In some important areas (recent civil rights legislation
is a good example 7) and at some critical historical times, Congress has reacted decisively against judicial interpretations. At other times, the courts
have shaped their decisions in anticipation of adverse reaction, possibly
threatened either explicitly or implicitly by Congress. 8 Only in the context of
this rich set of potential interactions can the processes of statutory enactment
and interpretation be understood.

I. LAW IN DEMOCRATIC THEORY

Democracy-understood as rule by the people or its representatives-is
3. See John Ferejohn & Barry Weingast, A Positive Theory of Statutory Interpretation,12 INT'L.
REv. L. & ECON. (forthcoming June 1992).
4. See infra Part IV.
5. See infra Part II.
6. See Ferejohn & Weingast, supra note 3.
7. See 137 CONG. REC. S 15,276 (daily ed. Oct. 25, 1991) (statement of Sen. Danforth) (requesting that interpretive memorandum suggesting intent of Civil Rights Act of 1991, Pub. L. No. 102166, 105 Stat. 1071, to overturn Wards Cove Packing Co. v. Antonio, 490 U.S. 642 (1989), be read
into Congressional Record).
8. The most famous example is the "switch in time" by Justice Roberts in West Coast Hotel v.
Parrish, 300 U.S. 379 (1937).

THE GEORGETOWN LAW JOURNAL

[Vol. 80:565

fundamentally at odds with the rule of law. Democratic rule requires that
the legislature be able to direct the conduct of government through the use of
statutory commands. Indeed, statutes are often seen as the main source of
legitimate coercion in a democratic state. Recent work in the theory of collective choice, however, suggests that such systems of commands must generally be either empty or incoherent. 9 Thus, in general, democratic laws will
exhibit internal chaos and contradiction and will be arbitrary in their effects.
If, as William Riker has argued,' 0 legitimate democratic commands are arbitrary, they would seem to have a limited moral claim to guide our actions.
The rule of law, on the other hand, requires that conduct be regulated by a
system of impartial public rules whose consequences can be foreseen and anticipated."I Such a system must be coherent if it is to have predictable consequences for individuals. The design of an optimal "coherence" test
remains a central question in jurisprudence, but most versions require at least
some degree of rationality: that legal commands be understood as rational
requirements imposed by the state for some comprehensible purpose, a purpose of a sort that could actually be held by a single individual. 12 Classical
collective choice theory suggests that this coherence is, in principle, unobtainable in a democratic state. 13
There are both philosophical and practical ways of resolving this tension.
Ancient republican (or natural law) conceptions of government offer one resolution. If legislative acts are aimed at finding or revealing an independently
existing common good or general will, statutory incoherence will merely indicate the defective epistemic competence of the legislature and need not constitute evidence of the impossibility of coherent democratic rule.' 4 The
commands of the legislature may at best be an imperfect guide to the com9. The classic reference is KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES (2d
ed. 1963), which shows that nondictatorial voting schemes cannot generally produce coherent social
choice. Id. at 51-60. A more recent study shows that the extent of this incoherence is such that
virtually any outcome can be generated by democratic procedures. See Richard D. McKelvey,
Intransitivities in Multidimensional Voting Models and Some Implicationsfor Agenda Control, 12 J.
ECON. THEORY 472, 472-82 (1976).
10. WILLIAM RIKER, LIBERALISM VERSUS POPULISM 22-29 (1983).
11. Randy Barnett writes that rule of law "is a commitment to a particular set of values-in

particular, the value of enabling persons to discern the requirements of justice in advance of action
(and in advance of subsequent litigation)." Randy E. Barnett, Foreword: Unenumerated Constitutional Rights and the Rule of Law, 14 HARV. J.L. PUB. POL'Y 615, 624 (1991).
12. Perhaps the clearest statement of this requirement is put by Ronald Dworkin: "The adjudicative principle of integrity instructs judges to identify legal rights and duties, so far as is possible,
on the assumption that they were all created by a single author-the community personifiedexpressing a coherent conception of justice and fairness." RONALD DWORKIN, LAW'S EMPIRE 225
(1986).
13. See ARROW, supra note 9, at 59-60; McKelvey, supra note 9, at 472-82.

14. For more on these distinctions see Joshua Cohen, An Epistemic Conception of Democracy, 97
ETHICS 26, 38 (1986) (arguing that although Riker has shown one interpretation of populism to be
incoherent, he has not shown that populism itself is incoherent); Jules Coleman & John Ferejohn,

1992]

STRATEGIC STATUTORY INTERPRETATION

mon good, but they may nevertheless be the best guide to what justice or the
common good requires.
From this view, statutes are not in themselves a source of democratic legitimacy; they are mere approximations of what just commands would be, and
5
worthy of respect insofar as they are accurate proxies for good rules.1 Perhaps they are the best approximations that can be hoped for in a democratic
state, but their obliging power-their legitimacy-is founded on a theory of
comparative institutional epistemic competence-that the legislature, because it is a representative body, is best able to discover the common goodand not on a theory locating moral authority in acts of collective will.
Although older republican conceptions of democracy rest on the foundation of a common good independent of the wills of its citizens, more modern
conceptions seek to ground the common good in the deliberative activities of
citizenry. 16 The view is that well-functioning democratic deliberative
processes work not to discover but to "constitute" the common good. They
do this not merely by following fair legislative procedures, for such a path
7
leads straight to Arrow's Theorem and its attendant dilemmas.1 Republican
deliberative practices must see democratic procedures as more than devices
for resolving conflicts. Democratic practices provide a setting in which citizens or their representatives can seek common principles that lie beneath our
mundane disagreements. While the disagreements themselves may remain,
we may be able rationally to agree on principled ways in which they might be
resolved. Thus, republican deliberation seeks common purposes underlying
apparent disagreement. The discovery and articulation of these common
purposes is an epistemic act as in older republican conceptions, and the authority of democratic commands derives in the special capacity of democratic institutions to constitute and discover (or to interpret) these common
purposes. In this sense, like the older conceptions, modern republican conceptions rest on a faith that common purposes are there to be found.
8
While theories of this sort are enjoying something of a revival,' they all
seem to rest on the belief that some sort of common good can be discovered
by the legislature.' 9 This ontological commitment to the existence of an inDemocracy and Social Choice, 97 ETHIcs 6, 24-25 (1986) (calling premature Riker's conclusions
that populism is incoherent).
15. This view was articulated in JEAN JACQUES ROUSSEAU, SOCIAL CONTRACT 34-35 (A.D.H.
Cole trans., E.P. Dutton & Co. 1950) (1762).
16. See CASS SUNSTEIN, AFrER THE RIGHTS REVOLUTION (1990).
17. Arrow's Theorem is a proof that all democratic politics must exhibit some degree of
irrationality.
18. See, e.g., SUNSTEIN, supra note 16.
19. For modem republicans, this notion of the common good does not exist prior to the existence
of community. The formation of the community is constitutive of the common good which may be
discovered through the interpretive practices of courts, social commentators, and ordinary citizens.

THE GEORGETOWN LAW JOURNAL

[Vol. 80:565

dependent common good, while it may seem plausible in a homogeneous

community, seems less and less available to modem citizens, who are chronically faced with what John Rawls has called the "fact of pluralism." 20 Once
we come to accept and even to embrace the idea of multiple and radically
incomparable notions of the good, and to see that interpretive approaches
cannot be counted on to create order out of chaos, it is hard to see how an
"epistemic" conception of democracy can be defended. 2' For these
reasons,
it seems to us that a satisfying philosophical resolution of the tension between
law and democracy is unavailable in the modem world. The most that can
be hoped for is a practical or political accommodation.
II.

COURTS AND LEGISLATURES

The practical tension between democracy and the rule of law is exhibited
most clearly in the relationship between courts and legislatures, but it also
lies at the root of public administration. Sovereign legislatures produce commands which need not, and generally cannot, be completely coherent.
Courts try to make sense of these commands within a larger scheme of common and statutory law. 22 This continuing attempt to make sense of incoherent legislative actions leads courts to treat the legislature as something it is
not: a rational individual, rather than a collective entity, possessed of intentions governing its actions in the same way that we understand ordinary individuals to have intentions. That courts do this is neither an act of obtuseness
nor an assertion of the authority of the bench. It flows from the normative
requirements of the rule of law. But the requirement that sense be made of
an incoherent pattern of signals from the legislature gives judges license to
ignore some legislative words in order to preserve the coherence required by
the rule of law, and in this sense places political power in the judiciary.
Judicial expression of the demand that legislatures act like individuals are
legion. They are found everywhere in the historical tension between the
(judge-made) common law and (legislative) statutes as the source of law and
in the tendency of judges to limit the (random, arbitrary, and unreasoned)
But for modem as well as ancient republicans, the common good is nevertheless a separate object
that can be found and is not merely the expression of legislative will.
20. JOHN RAWLS, Justiceas Fairness: PoliticalNot Metaphysical, in 14 PHILOSOPHY AND PUBLIC AFFAIRS 223, 249 (1985).
21. This leaves aside the question of what sort of epistemic theory could justify the choice of
democratic institutions as those that are best able to discern common purposes.
22. This view is most articulately expressed in Karl Llewellyn's advice that courts "strive to
make sense as a whole out of our law as a whole." Karl N. Llewellyn, Remarks on the Theory of
Appellate Decision and the Rules or Canons About How Statutes Are To Be Construed, 3 VAND. L.
REV. 395, 399 (1950); see also DWORKIN, supra note 12, at 225 (arguing that courts should interpret statutes as though they emerged from a single mind).

19921

STRATEGIC STATUTORY INTERPRETATION

effects of statutes on the structure of the law. 2 3 Judicial suspicion of legislative action is found too in modem codifications guiding court interpretation
of statutes. For example, even legal process scholars like Henry Hart and
Albert Sacks, in their compilation of materials on statutory interpretation,
say that "[e]very statute must be conclusively deemed to be a purposive act.
The idea of a statute without an intelligible purpose is foreign to the idea of
law . . -24 Their faith that fair deliberative procedures will lead to a rational and coherent structure of law seems more touching to a modern social
scientist than convincing, but it seems clear, at least in application, that even
if the legislature produces an incoherent system of statutes, the courts take it
as their job to make sense of it.
Of course, this statement leaves open the question of whether the legislature really "has" a coherent purpose, or whether the courts are simply required to "deem" it as having such a purpose, a distinction to which we shall
return later, but it is clear that modem collective choice theory suggests that
either jurisprudential enterprise is futile: legislative actions cannot be understood in the anthropomorphic fashion required by classical jurisprudence.
That does not mean that the law enforced by the courts is necessarily incoherent, but that the law can be only loosely connected to the body of
25
statutes.
In practice, the tension between democratic rule and the rule of law could
be resolved in either of two ways: (1) by devaluing statutes, either by interpreting legislation narrowly as traditional common law jurisprudence counsels, 26 or by imposing substantive tests on the actions of legislatures as
proposed by Cass Sunstein and other civic republicans; 27 or (2) by reducing
the commitment to legal coherence by taking, for example, either purely formalist-authoritative law is simply whatever emerges from legitimate consti29
tutional processes2 -- or positivist-simply equating law with command 23. See WILLIAM N. ESKRIDGE, JR. & PHILLIP P. FRICKEY, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 655-96 (1988).
24. HENRY M. HART & ALBERT M SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE
MAKING AND APPLICATION OF LAW 1156 (1958).

25. We do not address here the issue of how it is that the "purpose"-now understood as a
conventional term or a "legal fiction"-of the legislature can be found or constituted. Is it best to
use only the language in the statute where words are given their "plain meanings" at the time, or
alternatively, to supplement statutory language with other materials such as legislative history, subsequent legislative acts, evolving social conditions, or the evolving structure of law or language?
These issues are the meat of conventionalist (pragmatic) interpretation, and turn on political
choices. See Eben Moglin & Richard Pierce, Sunstein 's New Canons. Choosing the Fictions of Statutory Interpretation,57 U. CHI. L. REV. 1203, 1206-18 (1991).
26. See MELVIN A. EISENBERG, THE NATURE OF THE COMMON LAW (1988).

27. See Cass Sunstein, Interest Groups in American Public Law, 38 STAN. L. REv. 29, 59-64

(1985).
28. See JOHN ELY, DEMOCRACY AND DISTRUST 135-79 (1980).
29. See H.L.A. HART, THE CONCEPT OF LAW 18-25 (1961).

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[Vol. 80:565

views of the legal system. The first posture seems to take from the people
their capacity to direct their fate through statutes; the second risks normative
chaos by not requiring that state actions be based on reasons.
To the discomfort of democrats, some courts have recently embraced interpretative practices that have the effect of limiting the role of the legislature
in directing state action, sometimes in the name of doing the opposite.30
Judge Easterbrook and Justice Scalia, for example, in counseling narrow
readings of statutes, would require the legislature to enact statutes with a
level of detail and specificity (and foresight) that threatens to impair its authority to formulate legislation on the wide variety of issues confronting the
modem administrative state. 3 ' Thus, while such statutes would be strictly
enforced, this enforcement would be narrowly targeted and, in any case,
there could not be very many statutes enacted. 32
There is not much comfort for democrats from the other end of the political spectrum either. Liberal commentators have urged courts to add either
deliberative or substantive tests to procedural ones in evaluating the legal
force of legislative action.3 3 Only a dwindling band of legal process theorists,
besieged on both sides by those suspicious of the private capture of legislation, seem content to rely on procedural tests alone,3 4 and one suspects that
this reliance is misplaced insofar as it rests on an unjustified faith in fair
representative procedures to produce coherent or rational outcomes.
So, there is agreement right and left that courts must act to assure the
coherence of legal structure against unreasoned or arbitrary legislative actions. In this sense, courts are inherently undemocratic and perhaps even
antidemocratic institutions. Their problem, after all, is to find ways rightfully to ignore some legislative actions in order to bring order to the overall
structure of the law. Traditionally, much of the debate has been between
those counseling that only the words in duly enacted statutes should be regarded as worthy of judicial respect (textualists) 3 5 and those who believe that
other sources-various versions of legislative history, subsequent agency and
judicial interpretations, for example-should also be employed in construct30. See William Eskridge and John Ferejohn's analysis of Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), and INS v. Chadha, 462 U.S. 919 (1983). William
N. Eskridge, Jr. & John Ferejohn, The Article I Section 7 Game, 80 GEO. L.J. 523, 547 (1992).
31. See INS v. Cardoza-Fonseca, 480 U.S. 421, 452-55 (1987) (Scalia, J., concurring); Frank
Easterbrook, The Role of Original Intent in Statutory Construction, 11 HARV. J.L. & PUB. POL'Y
59, 59-66 (1988).
32. A textualist court "may actually be imposing huge costs on a legislature too busy to redraft
'unclear' statutes or not prescient enough to provide for future possibilities." T. Alexander
Aleinikoff, Updating Statutory Interpretation,87 MICH. L. REV. 20, 25 (1988).

33. E.g., Sunstein, supra note 27, at 69-75.

34. See, e.g., ELY, supra note 28, at 73-104.
35. E.g., Frank Easterbrook, Statutes' Domain, 50 U. CHI. L. REv. 533 (1983).

1992]

STRATEGIC STATUTORY INTERPRETATION

ing a coherent body of legal commands. 36 Proponents of each view suggest

that the other is undemocratic in ignoring actions of the legitimately constituted representative body, and from an abstract point of view we can see that
both charges are correct.
But what is it that democracy requires of courts? Suppose a court wished
to play a role minimally at variance with the demands of democratic rule.
How should it relate its decisions to the emanations of the legislature? Both
textualists and interpretivists can agree that a statute as passed by a legislature ought to be viewed as a source of authority if only its meaning could be
determined. Such acts possess some authority by virtue of having emerged
according to fair procedures from a duly constituted representative body.
While there are many commentators who believe that the meaning of a statute evolves with changing social conditions and the changing characteristics
of language, 37 there is general agreement that the court ought to pay substantial deference to the words of the enacting legislature as opposed to the preferences of the current one. 38 When Frank Easterbrook writes that courts
should be "honest agents,"' 39 he surely means they should be honest agents of
the legislature that passed the statute, not the one poised to react to current
rulings. The current legislature, as yet, has produced no legal commands,
certainly none by regular public processes, to which courts may defer. The
only way for its desires to enter a court's decisions is through anticipation or
divination. While courts that respond in anticipation of the demands of the
current legislature may be acting democratically (in the sense of responding
to what they believe to be popular sentiment, as represented in the current
legislature), they are surely not being responsive to law. Besides, one may
well doubt the competence of courts to ascertain either popular desires or
their legislative embodiment, unless they are embodied in statutes.
These issues, when debated by judges and law professors, are often discussed in a purely normative setting. What is it that a court, trying to maintain a system of rule of law, should do when interpreting statutes? What is
the best way for a court to act in a democracy? But the jurisprudential
debate is not, in fact, carried on in a political vacuum. While the courts must
interpret legislative actions, they do not always have the last word, and their
actions may have political consequences both for the substance of public policy as well as for the integrity of governmental actions and institutions. In
particular, the interpretive stances taken by a court are to be evaluated ac36. Eg., William N. Eskridge, Jr., Public Values in Statutory Interpretation, 137 U. PA. L. REv.
1007, 1061-91 (1989).
37. Eg., William N. Eskridge, Jr., Gadamer/StatutoryInterpretation,90 COLUM. L. REV. 609,
632-66 (1990).
38. See, e.g., Easterbrook, supra note 35, at 544-51.
39. Frank H. Easterbrook, The Supreme Court, 1983 Term-Foreword: The Court and the Economic System, 98 HARV. L. REv. 4, 60 (1984).

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[Vol. 80:565

cording to their consequences. What might superficially seem a normatively

attractive jurisprudence may in fact produce results that are inferior, either
consequentially or procedurally, to those of an apparently less attractive
approach.
The normative orientation of this paper leads us to assume that courts are
motivated by procedure rather than policy. 40 Although judges may have policy interests and preferences, we think of them as allegiant to a system of
values aimed at enhancing the efficacy of law in a democratic system. Thus,
the main questions we ask are these: Is it possible for courts to give influence
to past statutory enactments even when the political climate has shifted?
And, if so, what interpretive strategy gives maximal effect to statutory commands? Or, to use Easterbrook's expression, how is it possible for a court to
be an honest agent of the enacting Congress?
III.

MODELING CONGRESS AND COURTS

A. THE BASIC MODEL

In order to answer these questions we introduce a model similar to that

introduced by Brian Marks in his seminal paper on the case of Grove City v.
Bell.4' Legislation is produced in a bicameral congress, and, for purposes of
this argument, any statute that emerges from the legislative process will be a
compromise between the most preferred points of the median members of the
two chambers. At a given point in time the court has been delegated the
authority to make a choice, x, from a policy space, X. There is a status quo
policy, , which embodies the substance of previous legislation. Depending
on the interpretation one gives to a one can give either a textualist or
originalist spin to our theory. Q might just summarize statutory commands,
or it might reflect the legislative history of the statute or such poststatutory
information as agency or judicial interpretations. For now, we simply take
Q, whatever else it contains, to embody the commands of an enacting legislature as encoded in law. For the present, we take the policy space to be onedimensional, assume that all the actors have Euclidean preferences, and iden40. It is possible to consider policy-motivated judges employing the same techniques as in this
paper, and were we concerned with developing a positive theory, we would be tempted to do so. See
generally Ferejohn & Weingast, supra note 3.
41. BRIAN A. MARKS, A MODEL OF JUDICIAL INFLUENCE ON CONGRESSIONAL POLICY MAK-

ING: GROVE CITY V. BELL (1988). Similar models have been studied by William N. Eskridge, Jr.,
Reneging on History? Playing the Court/Congress/PresidentCivil Rights Game, 79 CAL. L. REV.
613 (1991); John Ferejohn & Charles Shipan, CongressionalInfluence on Bureaucracy,J.L. ECON.
& ORGANIZATION, Special Issue 1990, at 1; Krishna Ladha, The PivotalRole of the Judiciaryin the
Deregulation Battle Between the Executive and Legislature, (Nov. 1991) (unpublished manuscript,
copy on file at The Georgetown Law Journal); Pablo T. Spiller & Rafael Gely, CongressionalControl
or Judicial Independence: The Determinants of US Supreme Court Labor Decisions, 1949/1988
(July 19, 1991) (unpublished manuscript, copy on file at The Georgetown Law Journal).

STRATEGIC STATUTORY INTERPRETATION

1992]

tify the positions of the median members of the House and Senate as H and
S, respectively. See Figure 1.
FIGURE 1
COURT CHOICE, X

Assume for now that a case is brought to the court in which it can,
through its decision, implement any outcome in X. Clearly, if the court
chooses an outcome in the interval between H and S, it does not risk a successful congressional response. Since the House prefers only policies between
Q and H to Q and the Senate prefers only policies between Q and S to Q,
neither can be made better off without making the other worse off. Thus, no
bill to change the status quo exists that will command the support of both
chambers, and the chambers would not be able to agree on a response overturning any such judicial decision. If Q were outside of the interval between
H and S, we can see that if a court's jurisprudential principles led it to ignore
the political viability of its interpretation in favor of remaining faithful to the
literal expression of the enacting legislation, the legislature would simply
overturn its ruling and the policy outcome would, in any event, locate between H and S. In this case, the preferences of the previous legislature would
be totally without effect. In fact, if Q is outside the interval between H and S,
a court that wanted to give the maximal force to the words of the enacting
legislature would give more effect to its commands by producing a politically
viable decision on the edge of the interval between H and S, rather than
risking a political response in the interior. In this sense, the best "honest
agent" of the enacting legislature would not restrict itself to giving literal
textual interpretations to statutes. Rather, the best honest agent would engage in what we call strategic interpretation, by taking account of the shifting
political context surrounding its rulings.
In this simple world, the effect of judicial review by strategic courts is
either to leave outcomes undisturbed (if Q is between H and S) or to shift
outcomes somewhat from the commands of the previous legislature toward
the preferences of the sitting legislature (if Q is outside of H and S). This can
be seen in Figure 1. For the case of Q between H and S, the bicameral structure prevents new legislation, and the court's interpretation of Q stands. The
House will approve legislation only if it moves policy from Q toward H; S
will approve legislation only if it moves policy from Q toward S. Hence,
there do not exist policies that both will support. For the case of Q outside of
the interval between H and S, however, a court interested in preserving an

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interpretation closest to that of the enacting legislature-i.e., closest to Qwill choose H when Q is to the left of the interval and S when Q is to the
right of the interval. Figure 1 illustrates this for Q to the left of H. If the
court leaves the decision at Q, then the two houses will pass legislation. In
order for the court to assure the outcome closest to Q, it will interpret the
legislation to mean H. No legislation is possible to alter this decision-the
House will not approve a policy change that makes it worse off.
Thus, courts minimally interested in maintaining some degree of authority
for law would adopt a jurisprudence that counseled what Alexander
Aleinikoff has called "updating" statutes.4 2 On the other hand, while judicial review gives the words of the enacting legislature more force than they
would otherwise have had, outcomes are mostly sensitive to the will of the
sitting legislature. Thus, rational legislators would anticipate that their statutory enactments would have force only as long as the makeup of the legislature did not shift very much. In this case, it is a little hard to see why
legislators would bother writing down statutes and expend resources in enacting them. Rational legislators would instead spend their efforts on securing their continued hold on their seats so that they (or people like them)
retain a position in the next sitting legislature. In other words, in a world
this simple, even if courts behave as the best kind of honest agent of the
enacting legislature, it is hard to account for the "fact" of law.
B. THE IMPACT OF AGENCIES AND CONGRESSIONAL COMMITTEES

Consider a slightly more complicated world in which there is an administrative agency that takes the initial interpretive step and in which cases come
before the court challenging the agency's interpretation of Q. Agencies are,
after all, the creatures that do most of the interpreting of statutes in the modem state, and much of the duty of courts is to guide or control agency interpretations. Specifically, assume that an agency attempts to implement policy
x, which is different from , and that the chamber preferences are still represented by H and S. Moreover, we restrict the court to attend closely to the
legal enactments of the earlier legislature: if the court strikes down policy x
43
as inconsistent with the previous statute, the agency is directed to do Q.
In this case, if Q is outside of the interval between H and S, judicial action
will provoke a political response, so a court faithful to the original statute
42. Aleinikoff, supra note 32, at 20. Note that the addition of a president with veto power does
not fundamentally change this conclusion. If we simply relabel the variables so that P takes the
place of S, and H becomes the outcome that the two chambers would agree to, politically viable
outcomes are still independent of Q.
43. If the court is permitted more interpretive leeway by allowing it to direct the agency to
implement some policy other than x, exactly the same arguments as above imply that policy depends on the preferences of the sitting legislature and not on the enactments of the previous one.

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must decide whether it prefers the consequence of overturning the agency

interpretation to that of leaving agency policy undisturbed. If x and Q are
both outside the interval between H and S, either court action will lead to
legislation. If x is inside the interval and Q is outside, the court must compare leaving agency policy alone with its anticipation of the outcome of legislation. In either case, even a court faithful to the preferences of the enacting
legislature will condition its decisions on the current makeup of the legislature and not on the location of Q. Thus, the addition of an administrative
agency does not weaken the force of our conclusion: judicial review of statutes cannot induce policy to be near the enactments of the previous legislature in the face of a sitting legislature with hostile preferences. Once again,
we see that legislation itself is largely futile; holding power in the legislature
is all that matters.
What drives these results is the fact that the legislature cannot, even if it
wishes to, restrain itself from overturning a judicial ruling if it has the votes
to do so. Ironically, the lack of such a commitment mechanism implies that
judges who care about statutes are well-advised to pay more attention to
political realities than to the words in the statutes themselves. Nevertheless,
we may ask whether it is possible for a legislature to arrange its decisionmaking processes in such a manner as to secure some capacity for making commitments. We claim that the delegation of some kinds of legislative
authority to committees can have exactly this effect.
Consider a model in which agencies make policy and in which Congress
delegates the authority to monitor the agency to a committee that may not be
faithfully representative of the legislature. Here we examine a one-dimensional model (see Figure 2) in which the agency has a preferred position at A,
the state of the legislation is at Q, and the Congress is located at H (we ignore
considerations of bicamerality for now), and the supervising committee is
located at C. Let C(H) stand for the point which the committee regards
indifferently to H.
FIGURE 2
PREFERENCES IN A SIMPLE MODEL WITH COURTS
AND AGENCIES

C(H)

We assume that the agency moves first and chooses a policy, x, which
takes effect unless either Congress or the Court overrides it. Then, the court
chooses whether or not to strike down the agency action in favor of Q. Subsequently, the committee may choose to introduce legislation; if it does, the

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chamber is free to amend the legislation as it chooses before voting on it

compared to either x (if the court permitted x to stand) or Q (if it struck x
down). In the configuration in Figure 2, the court, acting second, would see
that if it strikes down an agency action, x, the committee would not introduce legislation. This is because Q is closer to the preference of the committee than H, because any legislation introduced would be amended to H before
being voted on, and because H would surely pass. Thus, the court would
strike down an agency action, x, if and only if it preferred Q to x. The
agency would anticipate this response by the court and choose x = C(H) if
the court's preferred position, J, is less than (C(H) + Q)/2; x = 2J - Q for
(C(H) + Q)/2 < J < Q and, x = Q for J above Q. In no case need the
agency choose a policy above Q because if the court strikes down the agency
policy there will be no subsequent congressional action.
Figures 3 and 4 illustrate the policy outcomes that can result as a function
of the position of the court as long as the committee is located between A and
H. The important thing to note is that if the commands of the enacting
legislature, , are very different from the desires of the current Congress, H,
judicial review has the effect of shifting policy outcomes in the direction of
the preferences of the current Congress (relative to that which would prevail
without judicial review, x = C(H)). If the preferences of the enacting legislature are relatively near those of the sitting legislature, the effect of judicial
review is to shift policy toward both H and Q. The effect of judicial review in
these cases is, in a sense, democratic in that it tends to shift policy toward the
current (and sometimes the past) congressional median. But, as in the previous model, the expressions of the enacting legislature are respected only to
the extent that they are similar to preferences of the current one.
FIGURE

EQUILIBRIUM OUTCOMES WITH JUDICIAL REVIEW:

C (H)

C(H)

Q < C(H)

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STRATEGIC STATUTORY INTERPRETATION

FIGURE

EQUILIBRIUM OUTCOMES WITH JUDICIAL REVIEW:

C(H) < Q < H

H

Q
C

C (H)

C(H)

Although the effect of judicial review in the previous cases was generally
majoritarian, at least with respect to the preferences of the sitting legislature,
under some circumstances courts can support results which depart from the
preferences of the current legislature. But when this occurs the departure
must be in the direction of the preferences of the enacting body. Suppose, for
example, that the committee, C, and the status quo, Q are both to the right of
H, and that the committee is closer to Q than to H. In this case, if the court
strikes down agency policy, the committee will not choose to introduce legislation since its proposal would lead to an outcome of H. The agency, anticipating this, will choose x = 2J - Q if J < Q and x = Q otherwise. Thus,
the effect of judicial review will generally be to shift policy away from what
would have happened without judicial review (x = H). Judicial review, in
this case, is antimajoritarian (relative to the position of the current legislature), but the direction in which it departs from majority preferences depends
on judicial preferences and on the preferences of the enacting legislature.
Depending on the preferences of the court, the policy outcome may favor
either the sitting legislature or the enacting body. Importantly, from our
point of view in this model, there is some reason to encode the commands of
the legislature in legal language: codification of the preferences of the enacting legislature in statutes determines the location of the status quo, which, in
turn, supports policy outcomes different from those that would occur without judicial review.
IV.

DISCUSSION

We have seen that as long as the courts are strategic interpreters of law,

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judicial review generally works to enhance the power of the previous majority-the enacting legislature-relative to that of the sitting one. This effect is
relatively weak in a legislature without committees because the sitting legislature would overrule any judicial holding outside the interval between H and
S. In that case, all that a sophisticated court can do is to ensure that the
policy is the one closest to the expression of the enacting Congress within
that interval.
A world with legislative committees is a little more complicated: as long
as the legislative committee with jurisdiction is relatively sympathetic to the
agency, strategic judicial review will confer greater power on a statute than
would exist in the absence of judicial review. In Figure 2, the outcome with
judicial review is Q, whereas without review it would be C(H). Of course, in
this example the outcome is better for the sitting legislature also, but when
the committee and agency sit on opposite sides of the current chamber median, judicial review can actually have the effect of protecting the statutory
expression of the enacting legislature against the wishes of the sitting legislature. Thus, by devolving legislative authority onto committees, the effect of
judicial review by a strategic court shifts policy results toward the statutory
expression of the enacting legislature.
This suggests that as long as the courts adopt a strategic interpretive regime, the enacting Congress can actually create conditions under which its
statutes will have greater rather than lesser effect. By delegating some kinds
of legislative authority to nonrepresentative committees, the enacting Congress can allow the court to enhance the weight given to its statutes. This
effect is achieved by allowing committees and courts to combine implicitly to
protect statutes that would not enjoy majority support in the current legislature. The strategic court ensures policy outcomes such that the committee
would not wish to introduce corrective legislation for chamber consideration.
Thus, in the presence of a strategic interpretive regime, nonrepresentative
committees can be seen as providing a commitment mechanism for the enacting Congress.
We argue that only if there is some causal relationship between statutes
and subsequent policy outcomes will there be a motivation for Congress to
enact statutes. The efficacy of statutes is causally connected both to the interpretive regime adopted by courts and to the internal institutions developed
within Congress. The power of statutory law itself depends on protecting
such enactments from the majoritarian whims of the current legislature;
courts can be counted on to provide protection only if their own decisions are
"protected" by structural impediments within Congress against immediate
legislative reaction. Some such impediments arise naturally from the constitutional division of powers embodied in Article I, Section 7. Bicamerality
and presentment by themselves give courts some strategic room to maneuver.

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STRATEGIC STATUTORY INTERPRETATION

But Congress, acting as an enacting rather than sitting body, can increase the
capacity of courts to give effect to its words by creating further institutional
structures.
There are a number of issues, each much discussed in the recent literature
on Congress," that must be addressed for this argument to be complete.
First and most important, how can Congress commit itself to conferring
gatekeeping authority on a committee? What is to stop the sitting Congress
from enacting legislation in an area even if the committee fails to bring a
proposal to the floor? Second, if committees have gatekeeping authority,
why would members of the sitting Congress permit committee membership
to be nonrepresentative? These are hard questions, and, taking a purely
static view of Congress, answers must lie outside this sort of model.
But if we see the current Congress as just one in a succession of legislatures, it seems clear that the issue is really a dynamic one: the enacting Congress, wishing that its laws will be enforced, wants to have both gatekeeping
and nonrepresentative committees to protect its enactments. Although any
subsequent sitting Congress would be tempted to renege (either by overriding
gatekeeping authority or forcing committees to be representative of the
whole chamber), that Congress will, at the same time, wish to enact its own
statutes and have them enforced in the future. Thus, it seems to us that the
temptation to diminish the force of gatekeeping, or to force committees to be
representative, can be mitigated, at least in part, by 45the desire of the current
Congress to have its own words have future effect.
It follows that judges ought to pay attention to politics when interpreting
statutes. Failure to do so will make them less effective servants of those legislatures that enacted statutes and will diminish the quality of deliberation
within a democratic process. Politically insensitive judges will provoke a regime of unstable and unsettled law in which members of Congress rationally
spend their time electioneering and posturing while their staffs assemble
hasty legislative responses to judicially created wreckage, rather than engaging in sober deliberation about the best course of action for society. Paradoxically, courts that place greater weight on enacting legislatures provide sitting
44. See, e.g., Ferejohn & Shipan, supra note 41, at 1-20.
45. While there is, as yet, no completely satisfactory answer to these questions in the literature,
recent work by Kenneth Shepsle and Barry Nalebuff on how a seniority system may be sustained
points in a promising direction. Kenneth Shepsle & Barry Nalebuff, The Commitment to Seniority
in Self-Governing Groups, J.L. ECON. & ORGANIZATION, Special Issue 1990, at 45. Although the
Shepsle-Nalebuff approach shows how delegation structures can produce endogenous commitment
capacity in a dynamic model, their equilibria are not unique so their theor, is not a powerfully
predictive one. All they are able to say is that the seniority system can be supported by an equilibrium. Within the normative viewpoint taken here, this incompleteness seems less troubling. We
argue that it is possible to prescribe consistent courses of action for judges and legislators that
would have the effect of increasing the power of democratically enacted law.

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legislators with greater incentives to research and deliberate policy alternatives. Put another way, if courts provide greater durability to statutes, legislators will invest more in statutory production. Politically sensitive courts
thus enhance both democratic values and law. In this sense, strategic courts
can provide a practical response to the theoretical tension between law and
democracy.
If judges are to be sensitive to politics, the current law, , must embody
nontextualist elements; at the very least it must (eventually) contain previous
judicial interpretations. In this sense, we believe that the best honest agent
can be neither literally nor pragmatically textualist: Q must contain postenactment elements. Whether or not it must go beyond the text in some other
direction is left open for now, but we believe that the methodology of this
paper provides a means for addressing that question.