TEXTUALISM’S DEFINING MOMENT

Introduction

Justice Antonin Scalia’s greatest legacy is his “new textualism,” which inspired a Kuhnian revolution in statutory interpretation. 1 1 See Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 23–25 (Amy Gutmann ed., 1997) [hereinafter Scalia, A Matter of Interpretation] (explaining and defending Scalia’s textualist philosophy of interpretation); William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 656–60 (1990) (“In each year that Justice Scalia has sat on the Court . . . his theory has exerted greater influence on the Court’s practice.”). ... Close 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.” 2 2 Daniel A. Farber & Phillip Frickey, Legislative Intent and Public Choice, 74 Va. L. Rev. 423, 454 (1988) (internal quotation marks omitted) (quoting Judge Antonin Scalia, D.C. Cir., Speech on the Use of Legislative History 15 (1985)); accord Off. of Legal Pol’y, DOJ, Using and Misusing Legislative History: A Re-Evaluation of the Status of Legislative History in Statutory Interpretation 33–34 (1989) [hereinafter OLP, Using and Misusing Legislative History] (arguing that the Article III power to interpret requires the judiciary to interpret laws in their actual, not intended, meaning); Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J.L. & Pub. Pol’y 59, 65–66 (1988) (“We should look at the statutory structure and hear the words as they would sound in the mind of a skilled, objectively reasonable user . . . . The meaning of statutes is to be found not in the subjective, multiple mind of Congress but in the understanding of the objectively reasonable person.”); see also John F. Manning & Matthew Stephenson, Legislation and Regulation: Cases and Materials 22–23, 55–79, 203–28 (3d ed. 2017) (analyzing the merits of textualism versus purposivism and outlining various canons of construction for textualist statutory interpretation). ... Close Crucially, the new textualism rejected the view that interpretation should seek “legislative intent,” often identified via consideration of legislative history. 3 3 Cf. John F. Manning, Second-Generation Textualism, 98 Calif. L. Rev. 1287, 1289–90 (2010) (explaining that “second-generation textualism” does not focus primarily on whether courts should consult legislative history). ... Close

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. 4 4 See, e.g., Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process 1374–80 (William N. Eskridge, Jr. & Philip P. Frickey eds., Foundation Press 1994) (1958) (describing the pragmatic approach to statutory interpretation). ... Close 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, 5 5 See Manning & Stephenson, supra note 2, at 203–08 (detailing the judiciary’s use of ordinary meaning and semantic canons of construction). ... Close (3) at the time the statute was enacted. 6 6 Condition (3) refers to statutory originalism. In theory, one could be textualist but not originalist, but many modern textualists are also originalists. See Victoria F. Nourse, Textualism 3.0: Statutory Interpretation After Justice Scalia, 70 Ala. L. Rev. 667, 676 (2019) [hereinafter Nourse, Textualism 3.0] (discussing the presence of originalism in textualism and its expansion over time). ... Close 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. 7 7 See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, at xxvii–xxx (2012) (arguing that textualism is the “most principled” interpretive method); Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1179, 1183–84 (1989) (“Even where a particular area is quite susceptible of clear and definite rules, we judges cannot create them out of whole cloth, but must find some basis for them in the text that Congress or the Constitution has provided.”); see also OLP, Using and Misusing Legislative History, supra note 2, at 34–37 (arguing that the rule of law is undermined by laws that lack a stable and ascertainable meaning). ... Close Thus, “textualism will provide greater certainty in the law, and hence greater predictability and greater respect for the rule of law.” 8 8 Scalia & Garner, supra note 7, at xxix. ... Close 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. 9 9 See Scalia, A Matter of Interpretation, supra note 1, at 16–23; see also OLP, Using and Misusing Legislative History, supra note 2, at 33 (“[S]tatutes must be interpreted according to actual meaning, rather than intended meaning, . . . [because] the power to interpret the laws is part of the judicial power of Article III and not of the legislative power of Article I.”); John F. Manning, Justice Scalia and the Idea of Judicial Restraint, 115 Mich. L. Rev. 747, 772 (2017) [hereinafter Manning, Justice Scalia and Judicial Restraint] (reviewing Scalia, A Matter of Interpretation, supra note 1) (explaining the connection between Scalia’s commitment to textualism and his outlook on the “judicial Power” vested in Article III courts). See generally Antonin Scalia & John F. Manning, A Dialogue on Statutory and Constitutional Interpretation, 80 Geo. Wash. L. Rev. 1610 (2012) (discussing Scalia’s opposition to judicial use of legislative history in statutory interpretation). ... Close 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. 10 10 See John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum. L. Rev. 673, 711–19 (1997); see also OLP, Using and Misusing Legislative History, supra note 2, at 26–33 (arguing that the Constitution assumes a textualist approach to statutory interpretation). ... Close 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. 11 11 Scalia & Garner, supra note 7, at 3–4. ... Close

Many legal academics are skeptical that the new textualism constrains judges as well as the traditional pragmatic approach does. 12 12 For a recent review of critiques of textualism, see generally Erik Encarnacion, Text Is Not Law, 107 Iowa L. Rev. 2027 (2022). On law professors’ views about textualism, see generally Eric Martínez & Kevin Tobia, What Do Law Professors Believe About Law and the Legal Academy?, 112 Geo. L.J. (forthcoming 2023), https://ssrn.com/abstract=4182521 [https://perma.cc/66LA-PD7N] (reporting a survey of over six hundred American law professors, in which many report favorable views toward textualism). ... Close 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. 13 13 See, e.g., James J. Brudney & Lawrence Baum, Oasis or Mirage: The Supreme Court’s Thirst for Dictionaries in the Rehnquist and Roberts Eras, 55 Wm. & Mary L. Rev. 483, 492–93 (2013) (arguing that by consulting dictionaries, Justices confer a deceptive sense of objectivity to their interpretations); Ryan D. Doerfler, Late-Stage Textualism, 2021 Sup. Ct. Rev. 267, 275–82 (2022) (arguing that modern judges’ flexibility in applying textualism facilitated the rise of manipulable canons of construction); Cary Franklin, Living Textualism, 2020 Sup. Ct. Rev. 119, 169–95 (2021) (showing that both liberal and conservative judges inevitably incorporate extratextual considerations into their textual analysis); Victoria F. Nourse, Picking and Choosing Text: Lessons for Statutory Interpretation From the Philosophy of Language, 69 Fla. L. Rev. 1409, 1423–30 (2017) (concluding, based on analysis of cases, that textualists, including Scalia, impose meaning by picking and choosing text). ... Close 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. 14 14 William N. Eskridge, Jr., The New Textualism and Normative Canons, 113 Colum. L. Rev. 531, 577 (2013) [hereinafter Eskridge, The New Textualism and Normative Canons] (reviewing Scalia & Garner, supra note 7); William N. Eskridge, Jr. & Victoria F. Nourse, Textual Gerrymandering: The Eclipse of Republican Government in an Era of Statutory Populism, 96 N.Y.U. L. Rev. 1718, 1737 (2021); William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 Mich. L. Rev. 1509, 1548 (1998) (reviewing Scalia, A Matter of Interpretation, supra note 1). ... Close

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; 15 15 See H. Brent McKnight, The Emerging Contours of Justice Thomas’s Textualism, 12 Regent U. L. Rev. 365, 365 (2000) (“[Thomas] is leaving his mark on the new textualist movement as he explores the boundaries of sole recourse to the text.”). ... Close Samuel Alito, whose Burkean jurisprudence has increasingly bent toward textualism; 16 16 See John O. McGinnis, The Contextual Textualism of Justice Alito, Harv. J.L. & Pub. Pol’y Per Curiam, Spring 2023, no. 14, at 1, 1, https://journals.law.harvard.edu/jlpp/wp-content/uploads/sites/90/2023/04/McGinnis-John-vFF.pdf [https://perma.cc/93EG-DCUL] (“Alito does have a consistent approach [to statutory interpretation], which would best be described as ‘contextual textualism.’”). ... Close Neil Gorsuch, the boldest heir to Scalia’s persistent, uncompromising textualism; 17 17 See Neil M. Gorsuch, Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia, 66 Case W. Rsrv. L. Rev. 905, 906 (2016). ... Close Brett Kavanaugh, inspired by Scalia to focus “on the words, context, and appropriate semantic canons of construction”; 18 18 Brett M. Kavanaugh, Keynote Address: Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions, 92 Notre Dame L. Rev. 1907, 1912 (2017). ... Close and Amy Coney Barrett, Scalia’s former clerk and sympathetic commentator. 19 19 See, e.g., Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 120 (2010) [hereinafter Barrett, Substantive Canons] (sympathetically examining Scalia’s efforts to consider linguistic and substantive canons). ... Close In addition, Chief Justice John Roberts presents himself as an umpire, applying statutory text according to established rules of interpretation. 20 20 See Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 56 (2005) (statement of John G. Roberts, Jr., J., D.C. Cir.) (“I will remember that it’s my job to call balls and strikes, and not to pitch or bat.”). ... Close 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, 21 21 See, e.g., Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2240 (2022) (exemplifying the split between the newest-textualist majority and the three dissenting pragmatists). ... Close 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. 22 22 See, e.g., Yegiazaryan v. Smagin, 143 S. Ct. 1900, 1905 (2023) (noting that the pragmatic minority joined Sotomayor’s majority opinion, along with Roberts, Kavanaugh, and Barrett, all of whom accepted respondent’s contextualist argument); Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1167 (2021) (noting that the pragmatic minority joined Sotomayor’s majority opinion); Lockhart v. United States, 136 S. Ct. 958, 959 (2016) (Sotomayor, J.) (“Although § 2252 (b)(2)’s list of state predicates is awkwardly phrased (to put it charitably), the provision’s text and context together reveal a straightforward reading. A timeworn textual canon is confirmed by the structure and internal logic of the statutory scheme.”); id. at 969 (Kagan, J., dissenting) (“That ordinary understanding of how English works, in speech and writing alike, should decide this case.”). At the time of writing, Justice Ketanji Brown Jackson has authored six majority opinions, all concerning statutory issues. This is too small a sample from which to draw confident conclusions, but there are clearly indications of some form of textualism. In one opinion, Jackson remarks, “Start with the text.” MOAC Mall Holdings LLC v. Transform Holdco LLC, 143 S. Ct. 927, 937 (2023). Another notes that the interpretive issue “boils down to what Congress intended, as divined from text and context.” Health & Hosp. Corp. of Marion Cnty. v. Talevski, 143 S. Ct. 1444, 1459–60 (2023). Other opinions look to statutory “language” and “plain language,” Santos-Zacaria v. Garland, 143 S. Ct. 1103, 1116 (2023); “plain text,” Delaware v. Pennsylvania, 143 S. Ct. 696, 705 (2023); “ordinary meaning,” id. at 708; or “common expressions,” Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 143 S. Ct. 1689, 1696 (2023). ... Close

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. 23 23 See Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev. 265, 269, 279, 281–84 (2020) (arguing that formalists like Gorsuch and contextualists like Kavanaugh reflect different visions for the new textualism); cf. Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2121 (2016) [hereinafter Kavanaugh, Fixing Interpretation] (calling for clearer “rules of the road” to determine the “best reading” of statutory texts). ... Close

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”? 24 24 See Kevin Tobia, Brian G. Slocum & Victoria Nourse, Progressive Textualism, 110 Geo. L.J. 1437, 1443 (2022) (noting that textualism has been critiqued as an attempt to effectuate a conservative legal agenda). ... Close

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. 25 25 140 S. Ct. 1731 (2020). ... Close Joined by Roberts and four pragmatic Justices, Gorsuch’s opinion for the Court purported to apply “ordinary public meaning.” 26 26 See id. at 1738 (referring to “ordinary public meaning”). ... Close In dissent, however, Alito, joined by Thomas, accused the majority opinion of being a “pirate ship” that falsely “sails under a textualist flag” 27 27 Id. at 1755 (Alito, J., dissenting). ... Close and argued that the Court was updating Title VII to suit current LGBT-friendly norms. 28 28 Id. at 1755–56. ... Close Similarly, Kavanaugh also applied “ordinary public meaning” 29 29 Id. at 1825 (Kavanaugh, J., dissenting). ... Close and accused the majority of confusing “ordinary meaning” with “literal meaning” and ignoring how the public would actually interpret Title VII. 30 30 Id. at 1824. ... Close

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. 31 31 143 S. Ct. 1804 (2023). ... Close — 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. 32 32 Id. at 1809–10. ... Close 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. 33 33 Id. at 1819–22, 1827–28 (Gorsuch, J., dissenting). ... Close Concurring in the Court’s opinion, Thomas doubted the precedents recognizing such a trustee relationship. 34 34 Id. at 1816–18 (Thomas, J., concurring). ... Close

Semantic meaning in Sackett v. EPA. 35 35 143 S. Ct. 1322 (2023). ... Close — The Clean Water Act (CWA) prohibits discharging pollutants into “navigable waters,” which the Act defines as “waters of the United States.” 36 36 33 U.S.C. §§ 1311(a), 1362(7), (12)(A) (2018). ... Close 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. 37 37 Sackett, 143 S. Ct. at 1336, 1340–41. ... Close 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, 38 38 33 U.S.C. § 1344(g)(1). ... Close an interpretation EPA and Congress have followed for the last generation. 39 39 Sackett, 143 S. Ct. at 1343 (Kavanaugh, J., concurring in the judgment). ... Close 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). 40 40 Id. at 1357–58. ... Close

Statutory precedent in Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union No. 174. 41 41 143 S. Ct. 1404 (2023). ... Close — 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. 42 42 Id. at 1410. ... Close 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). 43 43 San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245–46 (1959) (holding that state courts are disabled from adjudicating state-law claims that concern conduct “arguably” protected under the NLRA). ... Close 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. 44 44 Glacier Nw., 143 S. Ct. at 1417 (Thomas, J., concurring in the judgment). ... Close

Reconciling statutes in Turkiye Halk Bankasi A.S. v. United States. 45 45 143 S. Ct. 940 (2023). ... Close — Federal courts have jurisdiction to hear criminal charges against foreign states and their instrumentalities. 46 46 18 U.S.C. § 3231 (2018). ... Close 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. 47 47 Turkiye Halk Bankasi, 143 S. Ct. at 944. ... Close In dissent, Gorsuch ( joined by Alito) argued that the FSIA’s foreign sovereign immunity defense applied in criminal as well as civil cases. 48 48 Id. at 952 (Gorsuch, J., concurring in part and dissenting in part). ... Close

Choosing among textual canons in Bittner v. United States. 49 49 143 S. Ct. 713 (2023). ... Close — The Bank Secrecy Act requires Americans with certain financial interests in foreign accounts to keep records and file reports. 50 50 31 U.S.C. § 5314(a) (2018). ... Close Section 5321 authorizes the Treasury Secretary to impose a civil penalty of up to $10,000 for “any violation” of the statutory requirements. 51 51 Id. § 5321(a)(5). ... Close 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. 52 52 Bittner, 143 S. Ct. at 720. ... Close Joined by Thomas, Sotomayor, and Kagan, Barrett’s dissenting opinion countered with other textual canons in emphasizing the broad statement of the penalty provision. 53 53 See id. at 727–29 (Barrett, J., dissenting). ... Close

Choosing between statutory provisions in Biden v. Texas. 54 54 142 S. Ct. 2528 (2022). ... Close — President Joe Biden revoked his predecessor’s policy of returning to Mexico all undocumented immigrants coming across the U.S.–Mexico border. 55 55 Id. at 2534. ... Close Writing on the merits for Kavanaugh, Barrett, and the pragmatists, 56 56 Id. at 2548 (Kavanaugh, J., concurring) (noting that Barrett agreed with the majority on the merits, though she dissented on process grounds). ... Close Roberts interpreted the relevant immigration provision to vest enforcement officials with broad discretion. 57 57 Id. at 2541 (majority opinion). ... Close 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. 58 58 Id. at 2555 (Alito, J., dissenting). ... Close

Semantic meaning in Patel v. Garland. 59 59 142 S. Ct. 1614 (2022). ... Close — 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. 60 60 Id. at 1620. ... Close Arguing that the error was an honest mistake, Patel sought judicial review. 61 61 Id. ... Close Writing for all the textualists except Gorsuch, Barrett’s opinion applied 8 U.S.C. § 1252(a)(2)(B)(i), 62 62 8 U.S.C. § 1252(a)(2)(B)(i) (2018) (limiting review for several proceedings, including discretionary adjustment of status under § 1255). ... Close barring judicial review of “any judgment regarding the granting of relief” under the adjustment-of-status provision. 63 63 Patel, 142 S. Ct. at 1618–28. ... Close Joined by the pragmatists, Gorsuch argued that the Court read “regarding the granting of relief” out of the statute. 64 64 Id. at 1632 (Gorsuch, J., dissenting) (internal quotation marks omitted) (quoting 8 U.S.C. § 1252(a)(2)(B)(i)). ... Close

The role of the rule of lenity and legislative history in Wooden v. United States. 65 65 142 S. Ct. 1063 (2022). ... Close — 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. 66 66 Id. at 1067. ... Close Concurring in most of the majority opinion, Barrett and Thomas objected to its reliance on a statutory amendment and on legislative history. 67 67 Id. at 1076–79 (Barrett, J., concurring in part and concurring in the judgment). ... Close Concurring in the judgment, Gorsuch rejected the majority’s multifactor balancing approach and would have resolved the case with the rule of lenity. 68 68 Id. at 1079–86 (Gorsuch, J., concurring in the judgment). ... Close 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. 69 69 Id. at 1075–76 (Kavanaugh, J., concurring). ... Close 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. 70 70 Id. at 1065 (case syllabus). ... Close

Semantic meaning in Van Buren v. United States. 71 71 141 S. Ct. 1648 (2021). ... Close — 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.” 72 72 18 U.S.C. § 1030(e)(6) (2018). ... Close 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. 73 73 Van Buren, 141 S. Ct. at 1652. ... Close Joined by Roberts and Alito, Thomas dissented in favor of the Government. 74 74 Id. at 1662–69 (Thomas, J., dissenting). ... Close 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. 75 75 See id. at 1662 (majority opinion) (“On the Government’s reading, . . . the conduct would violate the CFAA only if the employer phrased the policy as an access restriction. An interpretation that stakes so much on a fine distinction controlled by the drafting practices of private parties is hard to sell as the most plausible.”). ... Close

The major questions doctrine in Biden v. Missouri. 76 76 142 S. Ct. 647 (2022). ... Close — 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. 77 77 Id. at 650. ... Close In a per curiam opinion joined by Roberts, Kavanaugh, and the three pragmatists, the Court upheld the mandate. 78 78 Id. ... Close 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. 79 79 See id. at 655–59 (Thomas, J., dissenting). ... Close

Literalism in Niz-Chavez v. Garland. 80 80 141 S. Ct. 1474 (2021). ... Close — 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. 81 81 8 U.S.C. § 1229b(d)(1) (2018) (providing that the stop-time rule is triggered “when the alien is served a notice to appear under section 1229(a)”). ... Close The notice must include the reasons for removal as well as the date, time, and place for a hearing. 82 82 Id. § 1229(a)(1) (explaining that “written notice (in this section referred to as a ‘notice to appear’) shall be given . . . to the alien . . . specifying” the time and place of his hearing and other facts required by statute). ... Close 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. 83 83 Niz-Chavez, 141 S. Ct. at 1480 (“Admittedly, a lot here turns on a small word.”). ... Close 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. 84 84 Id. at 1491–92 (Kavanaugh, J., dissenting). ... Close

Choices about contextual evidence in McGirt v. Oklahoma. 85 85 140 S. Ct. 2452 (2020). ... Close — In nineteenth-century treaties, Congress recognized sovereignty by the Muscogee (Creek) Nation over reservation land in what is now Oklahoma. 86 86 Id. at 2459. ... Close A state criminal prosecution of an American Indian defendant would have been invalid if his crime had occurred on the Muscogee Reservation. 87 87 Id. ... Close Supporting Oklahoma’s position, Roberts, Thomas, Alito, and Kavanaugh focused on nontextual evidence that Congress had implicitly “disestablished” the Muscogee Reservation. 88 88 Id. at 2482 (Roberts, C.J., dissenting). ... Close Writing for the Court, Gorsuch found that no statute actually disestablished the reservation. 89 89 Id. at 2463 (majority opinion) (noting how Congress has “sought to pressure many tribes to abandon their communal lifestyles and parcel their lands into smaller lots owned by individual tribe members” but never statutorily terminated the Reservation). ... Close In Oklahoma v. Castro-Huerta, Kavanaugh’s majority ignored McGirt and held that Oklahoma could prosecutecrimes by non-Indians committed on Indian reservations. 90 90 142 S. Ct. 2486, 2491 (2022). ... Close Gorsuch, joined by the pragmatists, dissented. 91 91 Id. at 2505–27 (Gorsuch, J., dissenting). ... Close

Semantic meaning in Atlantic Richfield Co. v. Christian. 92 92 140 S. Ct. 1335 (2020). ... Close — 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. 93 93 Id. at 1344. ... Close 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.” 94 94 Id. at 1366 (Gorsuch, J., concurring in part and dissenting in part). ... Close

Other recent debates have pitted Kavanaugh against Thomas and Alito in Reed v. Goertz, 95 95 143 S. Ct. 955 (2023). Kavanaugh delivered the opinion of the Court, writing also for Roberts, Barrett, and the three pragmatists. Id. at 959–62. Thomas dissented in opposition, id. at 962–72 (Thomas, J., dissenting), and Alito wrote a separate dissent joined by Gorsuch, id. at 972–77 (Alito, J., dissenting). ... Close Gorsuch against Barrett in HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Ass’n, 96 96 See 141 S. Ct. 2172 (2021). Gorsuch delivered the opinion of the Court, writing also for Roberts, Thomas, Breyer, Alito, and Kavanaugh. See id. at 2175–83. Barrett dissented, writing also for Sotomayor and Kagan. See id. at 2183–90 (Barrett, J., dissenting). ... Close Barrett against Gorsuch in Goldman Sachs Group, Inc. v. Arkansas Teacher Retirement System, 97 97 141 S. Ct. 1951 (2021). Barrett delivered the opinion of the Court, joined by Roberts, Kavanaugh, and the three pragmatists. See id. at 1957–63. Gorsuch dissented in part, joined by Thomas and Alito. See id. at 1965–70 (Gorsuch, J., concurring in part and dissenting in part). ... Close and Gorsuch against Kavanaugh (and Roberts, Thomas, and Alito) in United States v. Davis. 98 98 139 S. Ct. 2319 (2019). Gorsuch delivered the opinion of the Court, joined by Ginsburg, Breyer, Sotomayor, and Kagan. See id. at 2323–36. Kavanaugh issued a dissent, joined by Roberts, Thomas, and Alito. See id. at 2336–55 (Kavanaugh, J., dissenting). ... Close 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. 99 99 For examples from the 2022 Term, see, e.g., Axon Enter. v. Fed. Trade Comm’n, 143 S. Ct. 890, 900–06 (2023) (interpreting the Federal Trade Commission and Securities Exchange Acts, Kagan for a majority including all but Gorsuch, and to some extent Thomas, applied precedent to determine whether the statutory scheme preempts district court jurisdiction to hear constitutional claims); Wilkins v. United States, 143 S. Ct. 870, 875–878, 883–886 (2023) (interpreting the Quiet Title Act, Sotomayor, for a majority including Gorsuch, Kavanaugh, and Barrett, relied on a clear statement requirement for finding a provision jurisdictional; Thomas, Roberts, and Alito found the clear statement rule inapplicable in cases against the government); Delaware v. Pennsylvania, 143 S. Ct. 696, 711–12 (2023) (interpreting the Federal Dispositions Act, Jackson, for a majority including Roberts and Kavanaugh, relied on legislative history to clarify an undefined term, with Thomas, Alito, Gorsuch, and Barrett declining to join that part of the opinion); Helix Energy Sols. Grp. v. Hewitt, 143 S. Ct. 677, 682–83, 692–95 (2023) (interpreting the Fair Labor Standards Act, Kagan for a majority including Roberts, Thomas, and Barrett, parsed the agency regulations, against anti-regulatory doubts raised by Gorsuch, Kavanaugh, and Alito); see also Arizona v. Navajo Nation, 143 S. Ct. 1804, 1809–16, 1819–33 (2023) (interpreting a peace treaty, Kavanaugh wrote for a majority, while Gorsuch wrote the dissent joined by Sotomayor, Kagan, and Jackson). ... Close

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, 100 100 Scalia & Garner, supra note 7, at 6. ... Close 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. 101 101 See Grove, supra note 23, at 266–67 (observing that Bostock revealed tensions among the textualist Justices); Kevin Tobia & John Mikhail, Two Types of Empirical Textualism, 86 Brook. L. Rev. 461, 486 (2020) (distinguishing two types of modern textualism); Anita Krishnakumar, The Multiple Faces of Textualism, Jotwell ( Jan. 15, 2021), https://lex.jotwell.com/the-multiple-faces-of-textualism/ [https://perma.cc/9YJ4-6NLH] (summarizing Grove’s categorization of textualism into formalistic and flexible textualism). ... Close 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, 102 102 See, e.g., Wooden v. United States, 142 S. Ct. 1063, 1076, 1085–87 (2022) (Kavanaugh minimizing the rule of lenity, Gorsuch extolling it). ... Close what role semantic canons ought to play in statutory cases, 103 103 See, e.g., Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1175 (2021) (Alito, J., concurring in the judgment) (cautioning against the categorical use of grammar canons even though textualists are known for their frequent citations to such canons). ... Close how attentive the Court should be to statutory precedents and stare decisis, 104 104 See, e.g., Ramos v. Louisiana, 140 S. Ct. 1390, 1404–05, 1425 (2020) (dramatically illustrating differences among Gorsuch’s, Thomas’s, and Alito’s treatment of precedent and their understanding of stare decisis). ... Close what role historical meaning ought to play, 105 105 See Arizona v. Navajo Nation, 143 S. Ct. 1804, 1816, 1824 (2023) (illustrating the difference between Kavanaugh, who focuses on the text of the treaty, and Gorsuch, who uses historical meaning to inform his reading of the treaty); Bostock v. Clayton County, 140 S. Ct. 1731, 1750 (2020) (describing how the law is by nature dependent on context, which requires sensitivity to the likelihood of change). ... Close 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, 106 106 See Bostock, 140 S. Ct. at 1739, 1828 (contrasting Gorsuch’s focus on the words “because of” and “sex,” with Kavanaugh’s focus on the phrase “discrimination because of sex”). ... Close 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. 107 107 See Lon Fuller, The Morality of Law 153–55 (1963) (describing the law’s neutrality and its accompanying “internal morality”); Friedrich von Hayek, The Constitution of Liberty 218 (Ronald Hamowy ed., 2011) (arguing that “law in its ideal form might be described as a ‘once-and-for-all’ command that is directed to unknown people and that is abstracted from all particular circumstances of time and place”). ... Close 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). 108 108 Compare Sackett v. Env’t Prot. Agency, 143 S. Ct. 1322, 1341–44 (2023) (Alito, J.) (announcing a new rule for wetlands regulation that the majority felt was most consistent with the original statutory meaning and principles of federalism and due process), with id. at 1362–63 (Kavanaugh, J., concurring in the judgment) (supporting the approach followed for a generation by EPA and ratified by Congress in the 1977 CWA Amendments). ... Close 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). 109 109 See id. at 1356–57 (Thomas, J., concurring) (arguing for an even narrower understanding of “waters” that the federal government can regulate). ... Close

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” 110 110 See supra notes 1-3 and accompanying text. ... Close —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). 111 111 See Anita S. Krishnakumar, Backdoor Purposivism, 69 Duke L.J. 1275, 1298–301 & tbl.2 (2020) (analyzing the use of interpretive tools across 965 opinions in the 2005–2016 Terms); Anita S. Krishnakumar, The Common Law as Statutory Backdrop, 136 Harv. L. Rev. 608, 626 tbl.2 (2022) [hereinafter Krishnakumar, 2005–2019 Data] (analyzing the use of interpretive tools across 1191 opinions in the 2005–2019 Terms); Anita S. Krishnakumar, Cracking the Whole Code Rule, 96 N.Y.U. L. Rev. 76, 98 tbl.2 (2021) (analyzing the use of interpretive tools across 1040 opinions in the 2005–2017 Terms); Anita S. Krishnakumar, Dueling Canons, 65 Duke L.J. 909, 992–95 & tbl.9 (2016) [hereinafter Krishnakumar, Dueling Canons] (analyzing the use of interpretive tools across 528 opinions in the 2005–2010 Terms); Anita S. Krishnakumar, Reconsidering Substantive Canons, 84 U. Chi. L. Rev. 825, 847–49 & tbl.1 (2017) [hereinafter Krishnakumar, Reconsidering Substantive Canons] (analyzing the use of interpretive tools across 584 opinions in the 2005–2011 Terms); Anita S. Krishnakumar, Statutory History, 108 Va. L. Rev. 263, 285–86 tbl.2b (2022) (analyzing the use of interpretive tools across 1119 opinions in the 2005–2018 Terms); Anita S. Krishnakumar, Statutory Interpretation in the Roberts Court’s First Era: An Empirical and Doctrinal Analysis, 62 Hastings L.J. 221, 249–51 & tbl.2 (2010) (analyzing the
use of interpretive tool across 352 opinions in the 2005–2008 Terms); Victoria Nourse, The Paradoxes of a Unified Judicial Philosophy: An Empirical Study of the New Supreme Court: 2020–2022, 38 Const. Comment (forthcoming 2023) (manuscript at 4), https://ssrn.com/abstract=4179654 [https://perma.cc/KSJ2-VRGZ] (analyzing the use of interpretive tools across 300 opinions in the 2020–2021 Terms); Anita S. Krishnakumar, Textualism in Practice app. tbl.2a ( July 29, 2023), https://ssrn.com/abstract=4441426 [https://perma.cc/6TJX-TCKK] (unpublished manuscript) (analyzing the use of interpretive tools across 1254 opinions in the 2005–2020 Terms). To avoid redundant citation, we focus on Krishnakumar, 2005–2019 Data, supra,
the most recently published study.
For work employing similar quantitative methods, see Frank B. Cross, The Theory and Practice of Statutory Interpretation 142–48 (2009) (documenting Justices’ use of interpretive tools in the 1994–2002 Terms); James J. Brudney & Corey Ditslear, Canons of Construction and the Elusive Quest for Neutral Reasoning, 58 Vand. L. Rev. 1, 15–29 (2005) (documenting Justices’ use of interpretive tools in every workplace law case between 1969 and 2003). ... Close

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. 112 112 The most recent published data on individual Justices’ statutory interpretation is Krishnakumar, 2005–2019 Data, supra note 111. That dataset includes a rich set of opinions from Thomas (182), Alito (137), Roberts (83), Sotomayor (112), and Kagan (62), but—given the rapidly changing Court—it inevitably includes fewer from Gorsuch (31), Kavanaugh (13), Barrett (0), and Jackson (0). Id. at 626. ... Close Second, interpretation is changing quickly. For instance, there have only been a few recent “major questions” cases. 113 113 See Kate R. Bowers, Cong. Rsch. Serv., IF12077, The Major Questions Doctrine (2022), https://crsreports.congress.gov/product/pdf/IF/IF12077 [https://perma.cc/4N8J-2J46] (listing recent “major questions” cases). ... Close But despite this small number, this new canon is an important part of the modern textualist landscape. 114 114 Compare infra Choice 8, with Krishnakumar, Reconsidering Substantive Canons, supra note 111, at 850 (emphasizing the infrequent invocation of substantive canons). ... Close 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. 115 115 See supra note 23 and accompanying text. ... Close 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. 116 116 See Jeffrey M. Jones, Confidence in U.S. Supreme Court Sinks to Historic Low, Gallup ( June 23, 2022), https://news.gallup.com/poll/394103/confidence-supreme-court-sinks-historic-low.aspx [https://perma.cc/E4FM-XFA5]. ... Close