Once a statute is ambiguous, how should a judge or anyone else decide how to interpret it? Is it possible that they should consult their policy preferences? This is the latest interesting question that Professor Elhauge raises. A few replies to his analysis—
—As he notes, we are careful not to argue that policy preferences have no place in interpretation. That is a long-standing debate, and we mean to offer results and analysis that have value to readers on either side of it. Some people believe that judges should indeed give effect to their own preferences; but we think that even they would want to keep straight the difference between their preferences and their judgments about the text, even if they plan to give weight to their preferences in the end. Our studies suggest that this is hard to do. People try to put their preferences to one side, but the preferences infect the decision about meaning anyway. In this sense it is possible to speak of "bias"—of unwanted influence—even if the respondents want to give effect to their policy preferences in the end. They aren't trying to give effect to the preferences at that stage; so at that stage, the preferences are best considered a source of bias.
—Professor Elhauge speaks as though, once a statute is found ambiguous, there is nothing more the text can offer; it is time to resort to other methods of decision, like flipping a coin, estimating the preferences of others, or falling back on a default rule (such as finding for defendants, period). We don't think our respondents were doing any of those things. Once a statute is conceded to be ambiguous, it's still possible to have an opinion about how its text is best read. Possible not only in principle but in practice: the famous cases we use often produce opinions where a judge who says a statute is ambiguous goes on to argue vigorously that one reading is better than the other—not because it squares best with other evidence of legislative intent, but because it's just a preferable reading of the English. We think this is what our respondents were doing, too. And it might not be a bad idea normatively. There are reasonable arguments that the ordinary meaning of a statute should be given much weight on "rule of law" grounds: the rules that tell people what to do, and subject them to punishment if they disobey, should mean what they seem to mean.
—Asking what ordinary readers would think the statute means is one way of carrying out the interpretive job just described: "Well, I can see that the gun use statute is ambiguous; but an ordinary reader would certainly not read it as applying to trading a gun, so that's going to be my interpretation, too." This is a coherent way to proceed, and it has the advantage of avoiding bias in the sense explained earlier—that is, of producing a judgment more likely to be distinct from the policy preferences of the person making it. Of course it's possible to still think that the final decision should be based more on some other consideration—a statutory default rule, or whatever else. We are concerned with the competent execution of one stage in the process of deciding a statutory problem. Whether that stage is the last stage, or less important than others, is a question we leave for other occasions.
—Professor Elhauge mentions a possible inference from our forthcoming paper that, when deciding what ordinary readers would think, respondents tend to vote for defendants. But this isn't really clear. The pattern does appear in a few criminal cases we tested, but this might just be because the defendants in those cases happened to be taking the simpler and more intuitive view of what the statutes meant. I consider this an open question. And when asked what ordinary readers would say, there was movement toward the government's view by many who preferred the defendant's position as a matter of policy. This is not consistent with the idea that respondents simply put on defendant-colored glasses when asked what ordinary readers would think. But it is consistent with the idea that the "ordinary readers" question had a debiasing effect on them.
—Professor Elhauge suggests that the result might have been different if the respondents had been given more evidence of the legislature's preferences. No doubt that is true. I repeat that we are trying to shed light on a stage of interpretation: the simple judgment of English meaning. If distortions at that stage are later diluted by the addition of other information (evidence of legislative intent), fine. But again, judges who have all that evidence still often decide the meaning of statutes in ideologically predictable ways that suggest the effects we describe aren't much diluted. Maybe the same tendencies we find here also infect the judicial interpretation of all those rich sources of evidence that they had and that our survey-takers didn't.