Interpretive Independence: The Irrelevance of Judicial Selection and Retention Methods to State Statutory Interpretation

Abstract

Examining the relationship between the legislature and the judiciary in the statutory interpretation process on the state level illuminates a positive theory of common law courts’ independence. This article presents new empirical work that suggests a legislature’s attempt to codify the way in which a court interprets statutes has little influence over a judiciary’s sense of institutional independence. Moreover, neither the method of selection or retention of the judges, their term lengths, the method prescribed by statute, nor the type of claim being litigated correlates with the judiciary’s reception of the statutes codifying methods of interpretation. These findings have a few implications. First, the data shows judicial pushback to legislative interpretive directives at a fairly consistent rate regardless of selection and retention methods. In other words, all types of judicial selection and retention methods seem to share this type of institutional judicial independence. Second, while institutional ownership over interpretation appears unified across many variables like method of judicial selection, retention, term length, and type of claim; methodological choice in any given case is quite flexible, as shown by the trend of methodological disagreement in all states. Statutory interpretation is made up of both institutional and methodological components; institutionally the interpretive exercise appears firm, while methodologically it is flexible.