The Supreme Court is in the midst of an extended debate regarding the proper approach to construing federal statutes. A number of Justices have engaged in heated dialogue addressing the pros and cons of textualism or intentionalism, as well as the virtues and limitations of Chevron deference. Although Justice Ginsburg has not participated in these judicial exchanges, she has adopted her own approach to the challenge of interpreting federal statutes. This Article explores Ginsburg’s approach by focusing on four opinions that construe federal criminal laws and three that interpret labor relations and anti-discrimination laws. The Article’s central thesis is that Justice Ginsburg’s reliance on certain interpretive resources varies depending on how she views the Court’s role as an interstitial actor. In the criminal law area, Ginsburg opinions make primary use of language-based analysis and of two substantive canons - the rule of lenity and the anti-preemption canon - that operate to constrain the scope of the law, while she downplays contextual evidence of congressional or executive branch intent. By contrast, her labor and anti-discrimination opinions - although they begin with textual analysis - rely heavily on legislative history and purpose as well as on agency deference. These stark differences in interpretive approach probably reflect in part Justice Ginsburg’s underlying policy preferences. A more important lesson of the opinions, though, is how they signify her view of the Court’s appropriate interaction with the political branches. When construing the meaning and scope of criminal law statutes, Ginsburg advances a fairly muscular institutional role for the Court. Her criminal law opinions express a constitutionally informed concern for the relatively powerless position of criminal defendants in ordinary political discourse. At the same time, the opinions often include invitations to Congress to clarify its meaning by overriding the Court’s decision. Congress responded to Ginsburg’s initial criminal law majority opinion by overriding it a mere eight months later, and the Justice understands that the political branches are quite capable of producing effective responses to criminal law majority opinions with which they disagree. When it comes to labor relations and civil rights, Ginsburg regards the Court as a distinctly more junior partner in the lawmaking enterprise. This stance in turn signals both a greater comfort level about how interest group politics operate in a civil regulatory setting and greater skepticism regarding Congress’s ability to respond to any constructions imposed by the Court.
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Aug 1, 2010
R H Helmholz 
Open Access