Vermeule replies to Baude: A Pre-Chevron mind?

From Adrian Vermeule:

Thanks to Will Baude for his thoughts on our paper project (see here and here for our puzzles and conjectures). It’s interesting that the proposal for judges to take into account the votes of other judges provokes a kind of instinctive resistance. But it’s not clear what exactly the objection is. Some possibilities:

(1) Will seems implicitly to assume that “textualists” and “purposivists” inhabit different methodological universes, so that judges in one camp would obtain no information from considering the views of judges in the other. That’s not how interpretation works, however. Purposivist judges are certainly interested in text and canons, in part because those things supply evidence of the purposes that a reasonable legislator might have. Conversely, many textualist judges, like Holmes, have been willing to examine legislative history and other extra-textual sources as evidence that might shed light on the ordinary meaning of text.

But even when textualist judges eschew legislative history altogether, that does not mean there is no overlap between their approach to interpretation and that of purposivist judges. Schematically, it is not the case that textualist judges consider sources or arguments {A, B, C} while purposivist judges consider sources or arguments {D, E, F}. Rather closer to the truth is a schema in which textualists consider {A, B, C} while purposivists consider {B, C, D}, or even {A, B, C, D}. This implies that judges in both camps will often gain relevant information — relevant even on their own theories — from observing the votes of other judges, even judges in other camps. And, of course, most judges are not theoretical at all, and just consider all sources and arguments in a sort of promiscuous jumble.

(2) Will also seems to think it important that judges in each camp think their own theory “correct” (Will’s italics). Under the Chevron framework, however, even if I think I am correct, the question I have to answer is whether I think the other person’s view is not only wrong, all things considered, but is actually unreasonable. The whole point of Chevron is to create space for that distinction. It is a symptom of a pre-Chevron mind (sub-Chevron mind?) to conflate these two questions, assuming that if my view is correct, yours must be beyond the pale. There is an interesting, under-explored question whether Chevron implies that agencies should have a kind of meta-discretion to choose among reasonable theories of interpretation. But the fact that proponents of competing views think their views correct will not help us figure that out.

(3) Yet another separate question, which we flagged in our opening posts, is whether and under what conditions it is systemically desirable for a given judge to take any of this information into account. We think that is the critical question for the paper, which will attempt to sift out the conditions under which it is or is not desirable. Will points out that sometimes it is better for decisionmakers not to attempt to consider all available information; certainly that is true. But he seems to assume that throwing away this particular category of information is necessarily desirable in all settings. His confidence in that approach seems to outrun the available evidence and theory, as far as we can see. It’s an interesting puzzle why our proposal provokes such a reaction.