Statutory interpretation: Murphy on Foy on honesty in judicial reasoning

(Considering that statutory and regulatory interpretation is really, really important in administrative law and we don't have a statutory interpretation blog any more, you may see a few more general statutory interpretation posts on this blog.)

On the University of Miami's Jotwell blog, Richard Murphy (Texas Tech) reviews a new article by H. Miles Foy (Wake Forest), "On Judicial Discretion in Statutory Interpretation", in "The Truth Might Set Your Statutory Interpretation Free". The opening of Prof. Murphy's review:

There is something silly about Supreme Court decisions in which five justices explain that the conventional tools of statutory interpretation—e.g., legislative intent, objective textual meaning, and judicial rules for discerning and applying them—plainly indicate that a statute means A but the other four justices deploy the same tools to explain that the statute plainly means B.  After all, if the relevant meaning were all that clear, wouldn’t all nine of the extraordinarily capable legal minds on the Court come to quick agreement?  And isn’t their disagreement strong evidence that the statutory question has no pre-existing, determinate legal answer?   One might expect that under such circumstances, the rules of reasoned legal discourse would require justices to make remarks like, “Wow.  My dissenting colleagues’ arguments are really very good—they almost persuaded me—and I’m no pushover. But, on balance, I still think it is a better idea to choose interpretation A instead of B.”  Instead, the more usual practice is for both sides to insist that the other is just plain wrong.

The abstract of Prof. Foy's article:

In most cases it is realistic to suppose that statutes have a precise, judicially determinable meaning and that the courts are in a position to discover and declare that meaning through a process of legal reasoning. Yet there are cases in which this concept is simply unworkable. Not every question of statutory interpretation can be resolved persuasively through a process of legal reasoning, and to pretend otherwise is to perpetuate a fiction. Some legal fictions are useful; this one is not. It degrades, confuses, and corrupts the interpretive process.

Conventional interpretation is likely to fail in cases such as the ones I describe in this essay. Sometimes a conscientious judge will examine the relevant statute and conclude that more than one interpretation is possible and that conventional considerations do not favor a particular interpretive choice. In such a case, the judge should be free to declare that the statute creates a framework for choice, and the judge should be allowed to exercise prudent judgment within the statutory framework by preferring one permissible interpretation or another, while explaining candidly the reasons for the preference. In such a case the interpretive process is essentially a discretionary process, and it should be theorized as such.

Don't judges understand how silly they look when prevailing and dissenting opinions use the "plain meaning rule" to come up with diametrically opposed meanings? Ditto in circuit splits? EMM