Justice Antonin Scalia’s greatest legacy is his “new textualism,” which inspired a Kuhnian revolution in statutory interpretation.
Its basic interpretive principle requires a simple, fact-based linguistic focus: Courts should determine “the meaning that would reasonably have been conveyed to a citizen at the time a law was enacted, as modified by the relationship of the statute to later enactments.”
Crucially, the new textualism rejected the view that interpretation should seek “legislative intent,” often identified via consideration of legislative history.
For generations before the current dominance of the new textualism, judges typically followed a pragmatic approach that sought to determine the statutory meaning (1) understood by legislators, (2) passing a statute that advances public purposes, (3) as reasonably applied to current circumstances.
This Article refers to this approach as “traditional pragmatism.” In contrast, Scalia’s new textualism offered a seemingly straightforward alternative methodology that determined the meaning (1) understood by the ordinary person, (2) applying standard rules of semantics, definitions, and grammar,
(3) at the time the statute was enacted.
This methodology seemingly could be boiled down to ten words: the text, the whole text, and nothing but the text.
The new textualists also offered sophisticated normative justifications for their methodology. In particular, Scalia claimed that textualism is the only methodology faithful to the rule of law, which requires that legal interpretive rules be stable and that their application be predictable, consistent, objective, and neutral.
Thus, “textualism will provide greater certainty in the law, and hence greater predictability and greater respect for the rule of law.”
Moreover, Scalia maintained, textualism limits judicial discretion and is in fact the only method consistent with Article III’s grant of the “judicial Power,” which contemplates the neutral and objective application of preexisting rules to narrow, fact-based controversies.
A restrained, text-focused judiciary is required by the Constitution’s separation of lawmaking authority (Congress), from law implementation (President) and application (Court), and by the Article I, Section 7 process by which statutes are enacted.
Statutory text is all that Congress, with the President’s approval, may enact, and so textualism is the method most consistent with the democratic premises of constitutional lawmaking.
Many legal academics are skeptical that the new textualism constrains judges as well as the traditional pragmatic approach does.
Specifically, critics have demonstrated, with both qualitative and quantitative analyses of leading cases, that Scalia and like-minded jurists have applied textualism much more flexibly than their theory would predict.
Thus, the new textualism has failed to demonstrate a rule-of-law advantage over other theories or to show that it is required by or even consistent with democratic or constitutional values.
Despite these criticisms, the textualist momentum is not slowing, at least not within the judiciary. The Supreme Court is now dominated by devoted textualists: Justices Clarence Thomas, long an enthusiastic booster of the new textualism;
Samuel Alito, whose Burkean jurisprudence has increasingly bent toward textualism;
Neil Gorsuch, the boldest heir to Scalia’s persistent, uncompromising textualism;
Brett Kavanaugh, inspired by Scalia to focus “on the words, context, and appropriate semantic canons of construction”;
and Amy Coney Barrett, Scalia’s former clerk and sympathetic commentator.
In addition, Chief Justice John Roberts presents himself as an umpire, applying statutory text according to established rules of interpretation.
In constitutionalcases, there are intense debates between these five or six red-blooded textualist Justices and the three true-blue pragmatic Justices on opposing sides in predictable conservative–liberal splits,
but in statutory cases,it is textualism all the way down. Typically, the pragmatic minority silently joins a textualist majority or dissenting opinion, or they write their own, very similar, text-based opinions.
Textualism is now clearly ascendant and will remain so for the foreseeable future. At the same time, it is splintering, or at least the veneer of methodological consensus that textualism supposedly represents is eroding. Curiously, the Court’s textualists frequently disagree—not merely about how to apply text-based interpretive principles to resolve hard cases but also about what the relevant rules are. In other words, the newest textualists disagree about the definition of textualism itself.
This post-Scalia era is textualism’s defining moment. Three crucial questions ought to be answered. First, can the newest-textualist majority come together to entrench a rigorous and workable textualism without losing the methodology’s simple appeal? Second, can they figure out how to balance historic stability and current predictability, twin rule-of-law goals that are often in conflict? Third, can the newest textualism be applied with the genuine neutrality required by the rule of law without the ideological shade that haunted “Ninoprudence”?
The most salient intratextualist methodological battle occurred in Bostock v. Clayton County, in which the Court interpreted Title VII’s bar on job discrimination “because of . . . sex” to protect employees from being fired because of their sexual orientation or gender identity.
Joined by Roberts and four pragmatic Justices, Gorsuch’s opinion for the Court purported to apply “ordinary public meaning.”
In dissent, however, Alito, joined by Thomas, accused the majority opinion of being a “pirate ship” that falsely “sails under a textualist flag”
and argued that the Court was updating Title VII to suit current LGBT-friendly norms.
Similarly, Kavanaugh also applied “ordinary public meaning”
and accused the majority of confusing “ordinary meaning” with “literal meaning” and ignoring how the public would actually interpret Title VII.
Bostock is the most jurisprudentially rich disagreement among the textualist majority, but it is far from the only one. In case after case, the Court’s textualists have disagreed not just about results but also about what textualism as a method entails. The debates have covered a broad range of interpretive issues, including:
Historical and common law context in Arizona v. Navajo Nation.
— In an 1868 treaty establishing the Navajo reservation in the Colorado Basin area, the United States recognized water rights and other rights of the Navajo Nation. Writing for all the Court’s textualists except Gorsuch, Kavanaugh rejected the Nation’s petition to hold the United States responsible for its water rights, finding that the treaty did not provide an affirmative duty on the part of the United States as trustee.
Joined by the three pragmatic Justices in dissent, Gorsuch interpreted the treaty in light of its historical circumstances and common law trust doctrine to require the United States to live up to its trustee duties.
Concurring in the Court’s opinion, Thomas doubted the precedents recognizing such a trustee relationship.
Semantic meaning in Sackett v. EPA.
— The Clean Water Act (CWA) prohibits discharging pollutants into “navigable waters,” which the Act defines as “waters of the United States.”
Alito’s opinion for the Court ( joined by all the new-textualist Justices except Kavanaugh) limited the statute’s regulatory ambit to “streams, oceans, rivers, and lakes” and to adjacent wetlands that are “indistinguishable” from those bodies of water due to a continuous surface connection.
Concurring in the Court’s judgment but dissenting from its interpretation of the CWA, Kavanaugh (joined by the three pragmatic Justices) relied on the 1977 CWA Amendments that explicitly codified “adjacent” wetlands within the CWA’s ambit,
an interpretation EPA and Congress have followed for the last generation.
Concurring in the Court’s opinion, Thomas ( joined by Gorsuch) would have narrowed the CWA to cover only “navigable waters” as that term was understood in 1789 (and assertedly codified in the Commerce Clause, which is the basis for congressional clean water regulation).
Statutory precedent in Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union No. 174.
— An 8-1 Court ruled that the National Labor Relations Act of 1935 (NLRA) did not preempt a state court lawsuit charging that union members destroyed the employer’s property in the course of a labor dispute.
Writing for Roberts, Kavanaugh, as well as pragmatist Justices Sonia Sotomayor and Elena Kagan, Barrett’s majority opinion applied longstanding precedent requiring the employer to show that the aggrieved conduct did not even “arguably” fall within the NRLA’s ambit (a test the employer met).
Concurring only in the judgment, Thomas ( joined by Gorsuch) argued that the longstanding precedent should be overruled because it was “strange” in light of the Court’s federalism jurisprudence.
Reconciling statutes in Turkiye Halk Bankasi A.S. v. United States.
— Federal courts have jurisdiction to hear criminal charges against foreign states and their instrumentalities.
Joined by Roberts, Thomas, Barrett, and the three pragmatists, Kavanaugh’s opinion for the Court held that the limitations in the Foreign Sovereign Immunities Act of 1976 (FSIA) did not apply to such criminal prosecutions.
In dissent, Gorsuch ( joined by Alito) argued that the FSIA’s foreign sovereign immunity defense applied in criminal as well as civil cases.
Choosing among textual canons in Bittner v. United States.
— The Bank Secrecy Act requires Americans with certain financial interests in foreign accounts to keep records and file reports.
Section 5321 authorizes the Treasury Secretary to impose a civil penalty of up to $10,000 for “any violation” of the statutory requirements.
Writing for Roberts, Alito, Kavanaugh, and Jackson, Gorsuch employed textual canons in interpreting the penalty to apply to every false report filed and not to every false account contained in the filed reports.
Joined by Thomas, Sotomayor, and Kagan, Barrett’s dissenting opinion countered with other textual canons in emphasizing the broad statement of the penalty provision.
Choosing between statutory provisions in Biden v. Texas.
— President Joe Biden revoked his predecessor’s policy of returning to Mexico all undocumented immigrants coming across the U.S.–Mexico border.
Writing on the merits for Kavanaugh, Barrett, and the pragmatists,
Roberts interpreted the relevant immigration provision to vest enforcement officials with broad discretion.
In contrast, Alito (with Thomas and Gorsuch) read the discretionary text in light of other mandatory provisions and would have ruled that the previous policy was required by law.
Semantic meaning in Patel v. Garland.
— An immigrant sought discretionary adjustment of status from the Attorney General, but the administrative law judge found that he was barred for lying on a state driver’s license application.
Arguing that the error was an honest mistake, Patel sought judicial review.
Writing for all the textualists except Gorsuch, Barrett’s opinion applied 8 U.S.C. § 1252(a)(2)(B)(i),
barring judicial review of “any judgment regarding the granting of relief” under the adjustment-of-status provision.
Joined by the pragmatists, Gorsuch argued that the Court read “regarding the granting of relief” out of the statute.
The role of the rule of lenity and legislative history in Wooden v. United States.
— A unanimous Court interpreted the Armed Career Criminal Act to treat sequential storage-unit burglaries in one night as one “occasion” (and not several) for sentence enhancement purposes.
Concurring in most of the majority opinion, Barrett and Thomas objected to its reliance on a statutory amendment and on legislative history.
Concurring in the judgment, Gorsuch rejected the majority’s multifactor balancing approach and would have resolved the case with the rule of lenity.
Kavanaugh’s concurring opinion argued against the lenity canon because it had rarely made much difference in previous cases and distracted judges from textual analysis.
Like Kavanaugh, Roberts joined the Court’s full opinion, and Alito (without comment) joined all but the part (II-B) discussing statutory history and purpose.
Semantic meaning in Van Buren v. United States.
— The Computer Fraud and Abuse Act of 1986 (CFAA) makes it a crime to “access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.”
Barrett wrote for the Court (including Gorsuch and Kavanaugh) to void the conviction of a police officer accused of using his office computer for private searches that police department policy prohibited him from doing.
Joined by Roberts and Alito, Thomas dissented in favor of the Government.
The majority and dissent fiercely debated the meaning of “so” and “entitled.” Although disclaiming reliance on the rule of lenity, Barrett closed her opinion with concern for the broad reach of the CFAA if the Government’s approach had prevailed.
The major questions doctrine in Biden v. Missouri.
— Interpreting congressional authorization to issue rules regulating the operation of hospitals receiving federal funds, HHS mandated that hospital employees be vaccinated against the COVID-19 virus.
In a per curiam opinion joined by Roberts, Kavanaugh, and the three pragmatists, the Court upheld the mandate.
Thomas’s dissenting opinion ( joined by Alito, Gorsuch, and Barrett) invoked the major questions doctrine (MQD) in arguing that a more specific or targeted text was required to authorize an agency to adopt such a far-reaching policy.
Literalism in Niz-Chavez v. Garland.
— The 1996 immigration law requires the government to serve a “notice to appear” on individuals it wishes to remove from this country; the notice serves as the termination (the “stop-time”) point for the requirements that the immigrant must meet to seek discretionary relief.
The notice must include the reasons for removal as well as the date, time, and place for a hearing.
Writing for Thomas, Barrett, and the three pragmatists, Gorsuch hyperfocused on the indefinite article “a” and interpreted the provisions to require the government to include all that information in a single notice.
Joined by Roberts and Alito, Kavanaugh’s dissent argued that the Court’s interpretation was too literal and that the government could satisfy the statute with sequential notices that, together, provided all the required information.
Choices about contextual evidence in McGirt v. Oklahoma.
— In nineteenth-century treaties, Congress recognized sovereignty by the Muscogee (Creek) Nation over reservation land in what is now Oklahoma.
A state criminal prosecution of an American Indian defendant would have been invalid if his crime had occurred on the Muscogee Reservation.
Supporting Oklahoma’s position, Roberts, Thomas, Alito, and Kavanaugh focused on nontextual evidence that Congress had implicitly “disestablished” the Muscogee Reservation.
Writing for the Court, Gorsuch found that no statute actually disestablished the reservation.
In Oklahoma v. Castro-Huerta, Kavanaugh’s majority ignored McGirt and held that Oklahoma could prosecutecrimes by non-Indians committed on Indian reservations.
Gorsuch, joined by the pragmatists, dissented.
Semantic meaning in Atlantic Richfield Co. v. Christian.
— Interpreting the Superfund Act broadly to empower EPA to supersede state law in directing large-scale environmental clean-up operations, Roberts was joined by Alito, Kavanaugh, and the four pragmatists.
Joined by Thomas, Gorsuch dissented from such a broad understanding of the law—particularly the term “potentially responsible,” which he argued would turn the modest environmental law into a scheme for “paternalist central planning.”
Other recent debates have pitted Kavanaugh against Thomas and Alito in Reed v. Goertz,
Gorsuch against Barrett in HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Ass’n,
Barrett against Gorsuch in Goldman Sachs Group, Inc. v. Arkansas Teacher Retirement System,
and Gorsuch against Kavanaugh (and Roberts, Thomas, and Alito) in United States v. Davis.
In yet other recently contested statutory cases, one of the pragmatic Justices has written for one or more textualist Justices, with other textualist Justices in text-based dissent.
These “Text Wars” suggest that the newest textualism is failing to deliver its promised rule-of-law benefits: If all these smart textualist judges, assisted by teams of well-trained law clerks, cannot agree on answers, then textualism does not produce consistent, predictable, and knowable results in hard cases. Although the new textualists do not claim that their method always produces interpretive closure or complete predictability,
the recent divisions undermine their claim that textualism is any more objective, yields more predictable results, or constrains discretion better than pluralist, pragmatic approaches. At the Supreme Court, the newest textualism, as applied in statutory cases, may be less predictable than the traditional approach. Significantly, Sotomayor, Kagan, and Breyer or Jackson were all in the majority for thirteen of these nineteen cases. Roberts and Kavanaugh were in the majority for fifteen cases and Barrett for eleven of the fifteen cases for which she sat. But Thomas, Alito, and Gorsuch were in the majority for only seven cases apiece. Interestingly, Roberts and Kavanaugh voted more often in these cases with Sotomayor and Kagan than with Thomas and Gorsuch.
The recent debates among the newest textualists are important for several reasons, which this Article documents. First is the illusory expectation of text-centric simplicity. As applied, the new textualism is much more complicated than Scalia and his followers have advertised. The Court’s recent cases demonstrate that there are many analytical choices necessary to resolve hard statutory cases. Textualist methodology now requires as many as twelve important choices, many of which have subchoices—and even sub-subchoices. These choices create numerous flashpoints in which a judge may, often unconsciously, look out over the crowd and pick out their friends. A challenge for this complex and opaque textualism is to find ways to police its tendency to channel judicial preferences into statutory texts.
Second is the end of judicial consensus about the methodological consequences of the new textualism. There is no doubt that the new textualism announced by Scalia unsettled traditional practices of statutory interpretation. The newest-textualist majority is not inclined to restore the old order, but its Justices also have not replaced it with anything coherent. The Supreme Court’s newest-textualist majority is fundamentally divided on important methodological and even jurisprudential issues.
For almost a generation, textualism spoke with one voice—Scalia’s. Post-Nino, there are more voices, and the newest-textualist Justices’ sharp debates include such fundamental issues as whether the rule of lenity should have any bite,
what role semantic canons ought to play in statutory cases,
how attentive the Court should be to statutory precedents and stare decisis,
what role historical meaning ought to play,
whether it’s legitimate for the Court to read texts by aggregating the meanings of individual words or by understanding the phrase or clause as a whole,
and so forth.
Third is a normative crisis—the Supreme Court’s legitimacy meltdown. Many of the current disputes among textualist Justices go to the conceptual underpinnings of textualism and the very definition of the theory. The normative foundation for textualism is the rule of law, including values like (1) stability of legal rules, (2) transparency and predictability of rule application, and (3) neutrality and objectivity
for judges predictably applying the stable rules.
Given statutory and agency precedents generated by changed circumstances, long-term, historical stability in the law often comes at the cost of shorter-term predictability: Society expects the Court to follow current rules and precedent (predictability today), but the newest textualists are sometimes reluctant to do so when they feel rules and precedents are inconsistent with original meaning (restoring historical stability over time).
Conversely, when an originalist Court “discovers” new constitutional baselines (historical stability), their application in statutory cases will generate surprising results, sometimes scrambling textual plain meaning (predictability today).
A Supreme Court that upends settled legal rules is bound to make many Americans nervous, and it does not help that the Court does so inconsistently. When the Court generates surprising and especially unfair results under the aegis of “we are just applying the law,” the citizenry expects super-rigorous justification, but the textualist majority is divided as to what approach to statutory text justifies their work, especially in controversial cases. The recent cases illustrate how the simple and broad slogan of textualism—give textual words the meaning they “would reasonably have . . . conveyed to a citizen”
—is not specific enough to resolve a wide range of controversies. Today, “textualism” refers, at best, to many different theories that are applied inconsistently among “textualist” Justices and support different answers to many of the cases before the Court.
This Article’s primary aims are exegetical as well as critical: We identify twelve categories of choices in modern textualist interpretation and document that today’s newest textualists frequently make choices that are at odds with established doctrine, clash with the opposite choices made by other committed textualists (and often with their own previously stated textualist commitments), and are hard to justify as matters of either text or public policy. Our analysis is most sharply critical when the newest textualists—ironically, in these cases, speaking in one voice—depart most dramatically from “just following the plain meaning of the text” by applying judicially created, and often upgraded, clear statement rules inspired by novel interpretations of the Constitution.
The Article’s methodology combines qualitative doctrinal analysis with insights from legal theory, philosophy, and linguistics. We analyze dozens of recent cases and elucidate the complex theoretical choices at play. Although we focus on the Supreme Court, we also consider some lower court textualist opinions of significant impact. Our approach complements Professors Anita Krishnakumar’s and Victoria Nourse’s impressive quantitative research on interpretive trends at the Supreme Court, which has documented how often individual Justices cite interpretive tools (e.g., substantive canons) or modalities (e.g., arguments about consequences).
Those important quantitative studies have provided critical insight into modern textualism, and this Article’s qualitative approach adds to the account Professors Krishnakumar and Nourse are documenting.First, given the recent addition of several Justices, there is inevitably a small sample size of interpretation cases from the Court’s newest members: Gorsuch, Kavanaugh, Barrett, and Jackson. The most recent published quantitative studies do not include opinions from Barrett and Jackson and inevitably include fewer opinions from Gorsuch and Kavanaugh than from Thomas, Alito, and Roberts.
Second, interpretation is changing quickly. For instance, there have only been a few recent “major questions” cases.
But despite this small number, this new canon is an important part of the modern textualist landscape.
Finally, this Article’s qualitative approach emphasizes choices that have not been quantified and may not be easily quantifiable. For example, Choice 2 below examines intensional versus extensional approaches to meaning, and Choice 3 examines compositional versus holistic analysis. No prior quantitative study has documented these trends. Although these choices lurk below the surface, this Article argues that they are critical to understanding modern textualism.
This Article also responds to Professor Tara Grove’s theory that there are now two textualist camps within the Court.
The Article contends that there are several broad “modes” of new textualist analysis. Just three include a strict positivist mode that determines statutory meaning by homing in on the conventional social or legal meaning of the most relevant statutory words or phrases; a more methodologically pluralist mode that also considers statutory precedents, agency interpretations, and legislative evidence; and a normativist mode that starts with constitutional or statutory baselines imposing higher burdens of textual or contextual justification on the government. All of the newest-textualist Justices jump from mode to mode—which makes statutory cases more unpredictable today than twenty years ago and may have contributed to the Supreme Court’s plunging reputation.