Modern statutory interpretation is a field dominated by court-created legal presumptions. My prior work focused on hundreds of judicially created default rules and demonstrated that these rules are “law.” Here I argue that many of the default rules (and additional mandatory rules) are deeply entrenched by judicial decisions that are immune from or resistant to ordinary processes of legal change. Borrowing from the notions of a "superstatute" or "superprecedents," I argue that many of the federal decisions creating interpretive default and mandatory rules cannot be changed by ordinary legal processes. These decisions create "supercanons"--principles of statutory interpretation that cannot be changed by either the ordinary process of case-by-case adjudication or by legislation.
The clearest and least controversial example of a supercanon is the avoidance canon, which creates a mandatory rule for the interpretation of statues that could raise constitutional difficulties. Congress cannot override this canon through ordinary legislation, nor can the Supreme Court abandon the canon through the ordinary process of constitutional decisionmaking. The avoidance canon is "deeply embedded" in the same way that Marbury v. Madision or the Administraitve Procedure Act are insulated from ordinary processes of legal change.
I then demonstrate that many other interpretative principles are insulated from change through deep embedding. For example, the Chevron doctrine, treated by many scholars as "up for grabs" is actually a supercanon. Chevron cannot be reversed except through the kind of "gestalt shift" exemplified by the New Deal Settlement. This conclusion has important implications for the theory and practice of statutory interpretation. Scholars would be well advised to refrain from scholarship that suggests revision of the supercanons; such efforts are doomed to fail and are bound to widen the gap between the legal academy and the statutory-interpretation as it is practiced in the courts of law.