Textualism and Jurisdiction

This Article seeks to test textualists’ central claims—that their approach is most consistent with the faithful agent conception of the judicial role in statutory interpretation and more likely to constrain judges’ capacity to do mischief under the guise of statutory interpretation— by critically examining the manner in which textualists have interpreted jurisdictional statutes. In addition, it considers descriptive and normative implications of textualists’ treatment of jurisdictional statutes for the longstanding debate about the extent of Congress’s authority to control the jurisdiction of the federal courts. If textualist judges are supposed to act as faithful agents of Congress, following the plain meaning of statutory text, then when Congress confers jurisdiction without qualification we would expect textualist judges to eschew arguments for implicit exceptions to the exercise of jurisdiction. In practice, however, although the Court’s textualists have strictly read statutes that purport to divest the federal courts of jurisdiction, they have not been as consistent in relying on the plain language of statutes that appear to confer expansive grants of jurisdiction. The Court’s textualists’ treatment of jurisdictional statutes suggests that the textualists’ urge to constrain judicial power has sometimes trumped their competing demand that courts act as faithful agents of Congress by considering only the plain meaning of statutory language. This has implications for both textualism and the larger question of the proper relationship between Congress and the courts in crafting a jurisdictional regime, and should force textualists to defend their approach more explicitly as a device for constraining judicial authority.