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Much like lawmakers craft statutes, judges issue deeply reasoned, carefully worded opinions that impact Americans’ everyday lives. Those opinions set precedents on which other judges rely — the principle of stare decisis that has guided judicial decision-making in the United States from its roots in 18^th century English law.

Given their significance, how should judges interpret prior opinions when forming their own? Should they read the text of an opinion like a statute, for its plain, ordinary meaning — an approach known as textualism? Or should judges treat opinions differently, parsing and interpreting them in light of their purpose, context, or the author’s intent? 

The question points to a growing tension in the law: as textualism gains prominence, courts must confront whether their own opinions should be read with the same textual rigor — and what it means for precedent if they aren’t.

The methodology of judicial interpretation is increasingly important as the United States Supreme Court — the ultimate precedent-setter in the nation’s courts — becomes more dominated by self-described textualist justices and more willing to depart from stare decisis, says Duke Law professor Margaret H. Lemos. 

In a new paper Should Judicial Opinions Be Read Like Statutes? Lemos, an expert on legal and statutory interpretation, probes various rationales for why courts at all levels treat judicial opinions and statutes differently and finds good reasons to reject that approach. 

“Should we expect any kind of commonality across different interpretive domains?” Lemos asks. “And how should we think about judicial writings as legal texts?” 

Lemos focuses on what she calls the “not-statutes trope,” which asserts that judicial opinions are different than statutes, so shouldn’t be interpreted in the same way. Courts at all levels invoke this distinction, which dates to a 1979 Supreme Court decision stating, “the language of an opinion is not always to be parsed as though [the court] were dealing with the language of a statute.” 

The idea has taken off in recent years, including at the Supreme Court itself, where utilizing the not-statutes trope serves to cordon off justices’ own words from the textualist approach they take when interpreting statutes, Lemos says. She found that of 131 total federal court opinions using the trope, 81 were issued in the past five years. Indeed, Justice Neil Gorsuch, an avowed textualist, has invoked it in seven recent decisions when referring to prior opinions. 

Lemos doesn’t argue that judges should interpret judicial opinions on a purely textualist basis, as they do with statutes. Rather, they should “think twice” about deploying the not-statutes trope when it comes to their own writing.

“I think interpretive methods should be sensitive to institutional factors,” she said.

“My irritation doesn't come from the basic idea that judicial opinions are different from statutes, but from the fact that everything that could plausibly explain why judicial opinions shouldn't be read in a textualist manner also holds true for statutes.”

An approach to precedent with “huge consequences for the law"

One rationale for distinguishing between opinions and statutes is that judges issue opinions in very specific contexts, and statements shouldn’t be taken out of context, Lemos said.

“If you read a text without paying attention to what prompted its writing, you risk overreading or underreading it,” Lemos said. “Judges write these opinions because there is an actual concrete case before them that they are resolving, and that provides a really important context that shapes how they write.”

But that argument could hold equally true for statutes. “If you recognize the importance of context for opinions, it’s not clear why statutes are different,” Lemos said. “Lots of people have argued persuasively over lots of years that statutes also should be read in light of the policy context, or ‘mischief,’ that inspired them.”

Another argument for hewing closely to the text of a statute is audience: textualists argue that laypersons should be able to read a statute and understand how to abide by the law without knowing the history or purpose of a specific piece of legislation.

Judicial opinions do differ in this respect, because they commence with a statement of facts that explicitly provide the context for the decision that follows. But as Lemos points out, “many statutes also say, for example in their preambles, ‘This is why we're acting.’” And judicial opinions, especially Supreme Court decisions, could still be subject to textual interpretation. 

“The process of writing judicial opinions — and certainly Supreme Court decisions — is very careful and text-focused,” she explains. “They do understand that those words are going to matter.” 

Lemos said judges and justices use the not-statutes trope as a “get out of stare decisis free” card. 

“The cases that I find most interesting — and most troubling — are those where the court is talking about language that is pretty plainly part of the court’s earlier holding,” she said. 

“You can bite the bullet and say, we are going to change our precedent and we have a special justification for doing that — but you have to do that publicly. The not-statutes trope is a way of avoiding that whole exercise, because justices can just say, ‘Oh, maybe that’s what we said but it’s not what we meant.’”

As the court proves increasingly open to overturning precedents, Lemos suggests justices cannot have it both ways. 

If textual precision governs how judges read statutes, it becomes harder to explain why judges’ own opinions should be treated more loosely. Without a clearer justification, the not-statutes trope risks becoming less a rule of interpretation than a way to sidestep precedent — with significant implications for the stability of the law.