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Working Paper

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Judges interpreting statutes evidence a certain ambivalence whether they are interpreting the texts before them as artifacts whose meaning was fixed as of their date of enactment, or as present-day texts whose meaning may be shaped by subsequent events – whether intervening judicial decisions, or the adoption of new statutes (as distinct from amendments, an easy case) whose instructions bear on the issues they present. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council stridently referred the meaning of the Administrative Procedure Act's rulemaking provision back to the political compromise struck at its enactment in 1946; the opinion insisted that judges are not free to vary its terms by common-law improvisations based on their reasoning about the procedural needs of contemporary rulemaking. Motor Vehicle Mfrs' Assn v. State Farm Mutual Auto Ins. Co. almost as impatiently dismissed the argument that judicial standards for reviewing agency rulemakings are those that prevailed when the APA was enacted (equating review of rulemaking with highly permissive review of economic legislation), rather than the "hard look" understandings that had grown up in the 1970s, primarily in the D.C. Circuit. The particular tension has long been a puzzle for administrative law scholars; yet it seems to reflect a general unease about how judges ought best interpret Congress's words as they age.

This essay explores that tension, first in the context of thoughts about the judicial-legislative interface appearing in the literature, both today's and yesterday's, and then using the concrete APA example. It argues that in its very occasional forays into the construction of particular statutes, the Supreme Court should accord substantial weight to contemporary consensus the profession and lower courts have been able to develop in interpreting law. The dominant characteristic of particular statutory issues in the Court today is that they are very infrequently, and usually tardily, presented. The Court's certiorari choices, like the contemporary Congress's legislative choices, are driven by the disputes that are live and important at any given moment. If the uncontroversial does not command the Court's attention, it nonetheless becomes a part of the living law known to lawyers advising clients, to Congress choosing its legislative opportunities, to agencies deciding how to make procedural choices, and to lower courts that cannot so easily evade the responsibilities of decision. Were the Court honestly to face the implications of its reservation of authority to choose which statutory issues to consider, it might conclude that its refusal to credit intervening statutory and lower court case-law developments, more than its insistence on a static view of original meaning, profoundly mistakes its proper contemporary role.


Administrative Law | Law