Rationalizing Absurdity
abstract. Critiqued as a blank check for judicial intervention, the absurdity canon has been all but abandoned by modern textualists. But this Note argues that its total dismissal is unwarranted. By dissecting the multiple meanings of “absurdity,” this Note reframes the absurdity canon as a form of constitutional avoidance. Properly understood, the absurdity canon enforces constitutional values of rationality embedded in the Equal Protection Clause. This conception should have broad appeal to both textualists and nontextualists alike, calibrating judicial deference with traditional rule-of-law values.
Introduction
Few substantive canons of statutory interpretation have as longstanding a pedigree as the absurdity canon.1 Imported from the British legal tradition into American courts, the absurdity canon loosely instructs that statutes ought not be interpreted as to lead to absurd results.2 But what exactly does “absurd” mean, and how can judges consistently administer such an open-textured concept? The canon’s vagueness is the focal point of most critiques of absurdity, and both scholars and judges have long pointed out that the definition of “absurd” turns on highly subjective, contested, and inconsistent assessments of how unreasonable an outcome must be in order to qualify.3 As a result, finding any singular formulation of absurdity to satisfactorily explain all manners of its historical application continues to elude scholars today.4
Despite this paradoxical quality of being both historically entrenched yet normatively unsettled, scholars have not yet attempted to systematically explain how the absurdity canon has evolved over time in American courts and how those changes connect to larger jurisprudential moments in American legal history. This Note fills this gap by offering a descriptive taxonomy of how the Supreme Court has justified and applied the absurdity canon over time. After constructing a descriptive framework for making sense of the absurdity canon’s various use cases, the Note then connects each use case to a corresponding set of theoretical justifications rooted in debates about the proper relationship between Congress and the courts.5
This descriptive contribution advances the scholarly conversation in two ways. First, taxonomizing past practices sheds light on our current ones by revealing throughlines previously unnoticed. Frameworks, even imperfect ones, facilitate the formation of explanatory narratives that clarify how we have arrived at our current intellectual moment. The descriptive framework herein breaks from current academic accounts of the absurdity canon’s history—opening up space for normative contestation of its current applications.6
Second, taxonomizing uses of the absurdity canon itself rebuts the common critique that the concept of absurdity is too amorphous to be useful. I posit that the concept of absurdity actually does have definite shape, but that its nature must be understood as a mix of distinct, though overlapping, concepts that have evolved through time to fit the historical moment.7 If the absurdity canon can actually be made sense of in a purely descriptive way, then the allegation that it is undefinable is not itself a sufficient reason to reject the canon’s use. Instead, any rejection of the absurdity canon must be grounded in more substantive notions about what the role of courts ought to be in modern democracy.8 This topic—the relationship between courts and Congress—remains central to debates about interpretive method. As such, a careful parsing of the absurdity canon intersects with foundational normative questions with which the Court consistently grapples, even when it does not explicitly invoke the absurdity canon.
In addition to clarifying these muddy waters, this Note leverages its descriptive account to raise a normative defense of why absurdity ought to be understood as a weak form of constitutional avoidance. To the extent that scholars have engaged with the normative desirability of employing the absurdity canon in recent decades, they have mostly denied its continued relevance.9 Critics’ basic argument roughly goes: “If the absurdity canon authorizes judges to ignore the plain meaning of the text, then it would allow judicial usurpation of the legislative role.” John F. Manning—who has provided the most extensive academic analysis of the absurdity canon to date—argues that “the Court should permit such displacement only when the legislature’s action violates the Constitution.”10 Many other scholars have observed similar theoretical tensions between the absurdity canon and basic tenets of textualism—though scholars vary in their normative takeaways.11
This Note also proposes that the absurdity canon can and ought to be understood as a weak form of constitutional avoidance, anchored in the norm of rationality review—a familiar technique in both constitutional and administrative law.12 Specifically, this Note reinforces the commonsense notion that when courts encounter ambiguity in interpreting the statute’s plain text, they ought to attend to the likely effects of their interpretations. Only when those foreseeable effects do not plausibly serve any legitimate government end should another interpretation of the law be favored. This assessment parallels rational-basis review in constitutional law and hard-look review in administrative law. It emphasizes courts’ unique competency to determine relationships between means and ends, but does not ask courts to set political ends themselves.
This defense of the absurdity canon is both modest and bold. It is modest because it advances a commonsense notion of statutory interpretation that even the staunchest textualists could plausibly endorse.13 But it is bold because it points out that appealing to “common sense”14 in statutory interpretation necessarily invokes substantive questions about constitutional values. One’s view of when and how the courts ought to “load the dice”15 by determining what “common sense” requires depends on what the proper role of courts is. And more often than not, talk of “common sense” lays bare a need for unprincipled consequentialism—the exact kind of move that textualism was purportedly designed to avoid in the beginning, but to which it is increasingly becoming accustomed.16
This Note offers a
middle path. The absurdity canon does not need to be an “all-purpose backstop
to the principle that judges must follow a clear text”17 nor does it need to be completely jettisoned.
Rather, it can be narrowly understood to avoid irrational judicial outcomes
while exemplifying the courts’ appropriately deferential role in statutory
interpretation. Using Van Buren v. United States18 and Biden v.
Nebraska19as examples, I show how the Supreme
Court could have used this version of the absurdity canon—which I term “absurdity-as-irrationality”—to
engage in this balancing act later on.20
Though my proposed understanding of absurdity departs from existing accounts,21 it can nonetheless be traced to modern case law and is more theoretically consistent with popular approaches to statutory interpretation—both textualist and nontextualist.22 By being specific about the ways that absurdity has been used and can be used moving forward, I hope to rebut the characterization of absurdity as some ill-defined boogeyman of statutory interpretation. While it is true that the absurdity canon has been used by courts to justify unprincipled judicial rewriting of laws, the notion of absurdity still occupies an important role in our jurisprudence—a role deeply connected to constitutional norms.23 The critical question is whether there is a definition of absurdity that minimizes its risks and promotes its virtues. This Note sketches out a tentative answer to that question while acknowledging the potential risks.
This discussion is timely, and the stakes are high. For years now, both this Court and the legal academy have been deeply divided about what “textualism” demands,24 so much so that in the final Supreme Court decision of the October 2022 Term, Justice Barrett—a well-established scholar of statutory interpretation prior to her judicial roles—penned a concurrence that read more like scholarship than judicial opinion. In Biden v. Nebraska, in which the Court held that the Department of Education did not possess statutory authority to forgive student loans nationwide, Barrett argued that the major questions doctrine is neither a substantive canon nor a clear-statement rule, but a corollary to commonsense textualism.25 The major questions doctrine, she suggested, is merely semantic. Unlike other substantive canons, the major questions doctrine does not necessarily enforce extratextual values, such as nondelegation; it is a natural extension of “contextual” readings of the plain text. By distinguishing the major questions doctrine from substantive canons, Barrett indicated that substantive canons lack the legitimacy that the major questions doctrine actually possesses.26
In making her argument, Justice Barrett cited Manning’s The Absurdity Canon.27 This reference speaks volumes. Manning’s article, though written in a different time and thus situated in a different jurisprudential context, showed how the absurdity canon touches upon foundational questions about textualism’s imagination of the judicial role—questions that this Court continues to grapple with.28 Thus, read in its full context, Barrett’s concurrence can be understood as an attempt to bring coherence to the Court’s varying approaches to textualist analysis. But it also signals trouble beneath the water.29 It is both a recognition that this Court’s approach to reading statutes raises eyebrows and a plea to embrace a more capacious (though puzzling) version of textualism tuned in to “context.” Her attempt raised more questions than answers. Justice Barrett’s appeals to contextualism in Biden v. Nebraska and Van Buren provide more examples of how this Court facially disavows substantive reasoning yet covertly engages in it30—a trend that other scholars have also observed.31
This Note offers a vision of what a more principled method of consequentialist reasoning in statutory-interpretation cases might look like. In the process, I identify constitutional values that justify a limited form of consequentialist decision-making for both textualists and nontextualists alike. By taking seriously the notion that “[a]ny theory of statutory interpretation is at base a theory about constitutional law,”32 this Note makes the case that screening for absurd interpretations is a fundamental responsibility of the modern judiciary. And contrary to what critics suggest, this responsibility is consistent with a highly deferential vision of the judicial branch.
I also use the
specific history of a particular canon of interpretation to intervene more
generally at textualism’s crossroads. It suggests a path forward that
translates insights from the purposivist theories of
the past into the textualist language of the present. By doing so, it charts a
middle ground that might appeal to textualists who endorse
“fair”33 or “contextual”34
readings. At the same time, it remains transparent about its relationship to
the substantive values that animate judicial decision-making.
Part I surveys historical and academic discussions about the absurdity canon to distill common themes that led to its adoption in American courts. In doing so, Part I also clarifies how absurdity—like broad references to structure or purpose or even text itself—is an inherited term that has been distinguished, parsed, and refined over time to gain multiple sedimented meanings. In making this point, I rely not only on case law, but also on general trends in how scholars and judges thought about statutory interpretation as an enterprise. I point out, for example, how the hyperspecification of semantic canons was part of an attempt to better systematize the general goals of textualism as an interpretive movement. Similarly, I show how the development of substantive canons might give official names to otherwise inchoate intuitions that some judicial outcome would be unacceptable to the constitutional order.
Part II then uses this history to propose a taxonomy of the absurdity canon. By analyzing the multiple ways that absurdity has been defined in Supreme Court opinions over the past two centuries, I identify three distinct variations of the absurdity canon, each with overlapping, but nonetheless distinguishable, use cases and justifications. First, I analyze the origins of absurdity as a natural-law concept—that a statutory construction is absurd when its consequences egregiously violate some metaphysical desiderata of what does and does not count as “law.” I then explain why this formulation has been handily rejected as incompatible with the fundamental axioms of democratic pluralism and legal positivism. Second, I examine absurdity as evidence of Congress’s subjective intent, a statute’s objectified purpose, or both. Here, I note the historical entanglement between the absurdity canon and the unrestrained purposivism of the late nineteenth-century courts, which partially motivates modern textualists’ skepticism about the canon. This discomfort with the absurdity canon persists despite Scalia-era textualists’ attempts to rescue the absurdity canon through the lens of objectified purpose. Third, I consider the absurdity canon as a statutory parallel to the rational-basis test in constitutional law and rationality review in administrative law. Though this conception has not yet been popularized, it is doctrinally consistent with the language of well-known opinions and forms the foundation for my normative intervention.
Part II also offers some explanations for why this Court may have declined to explicitly invoke absurdity—or, for that matter, other constitutional-avoidance canons—nearly as often as its predecessors. First, textualists might be wary of being perceived as too interventionist. Absurdity’s historical association with both natural-law theories and purposivist theories of interpretation gives it a bad reputation. Second, textualists might have other tools in their repertoire that do the same work that the absurdity canon used to.35 But intentionally refusing to use the labels “constitutional avoidance” or “absurdity” does not change the substance of what this Court has done. The ascendance of the major questions doctrine—and Justice Barrett’s attempt to reframe it as an offshoot of “contextual” textualism—proves this point.36 Understanding the intellectual history behind this move reveals that the Court is not abandoning the logic of constitutional avoidance or even absurdity, as much as it is invoking substantially similar concepts under separate cover.37 As such, “rejecting the absurdity doctrine would not change the understanding of the constitutional relationship between Congress and the federal judiciary; rather, it would only change the understanding of what it takes to implement that relationship in light of the realities of the legislative process.”38
Part III evaluates each of Part II’s definitions of the absurdity canon in light of broader methodological debates about the proper relationship between Congress and the courts. I conclude that although all these senses of the absurdity canon share common ancestors and thus each has a historical claim to legitimacy, only absurdity as a form of constitutional avoidance anchored in rationality review ought to remain as one of the tools of statutory interpretation in the modern courts. Moreover, it is highly deferential, triggered only to enforce familiar rule-of-law and constitutional values. Contrary to prior scholarship, this Note argues that theorizing the absurdity canon as a form of rationality review exemplifies judicial restraint, capitalizes on the courts’ institutional competence, and harmonizes statutory interpretation with other areas of public law. And importantly, it is something that both textualists and nontextualists can justify. Defining absurdity as irrationality, taken at its best, is a limited intervention that anchors otherwise unprincipled deviations from the text in well-established constitutional norms.
To emphasize this point, I illustrate potential applications of absurdity-as-irrationality using two recent Supreme Court cases: Van Buren v. United States and Biden v. Nebraska. In both cases, the Court could have noted the ambiguity of the statutory text to employ the absurdity canon instead, assessing the respective statutes through a modified form of rationality review. In doing so, the Court could have reached the same outcome in Van Buren and a different outcome in Biden v. Nebraska—both with more straightforward reasoning that leverages ordinary tools of judicial construction. Rationality review is the bread and butter of the judicial role—and the absurdity canon is its manifestation in the domain of statutory interpretation.