Document Type

Article

Publication Date

2023

Abstract

It is by now axiomatic to note that textualism has won the statutory interpretation wars. But contrary to what textualists long have promised, the widespread embrace of textualism as an interpretive methodology has not resulted in any real clarity or predictability about the interpretive path—or even the specific interpretive tools—that courts will invoke in a particular case. Part of the reason for this lack of predictability is that textualism-in-practice often differs significantly from the approach that textualism-in-theory advertises; and part of the reason is that textualism-in-theory is sometimes in tension with itself. In light of textualism’s ascendance—and now dominance—on the modern Supreme Court, it is time for scholars and jurists to grapple with these theoretical tensions and points of divergence between textualist interpretive theory and practice.

This article provides the first empirical and doctrinal analysis of three central fault lines, or places where modern textualist interpretive practice diverges—sometimes sharply—from textualist interpretive theory. Based on 637 cases decided during the Roberts Court’s first fifteen-and-a-half terms, this article highlights three surprising textualist fault lines: (1) first, while textualism-in-theory seeks to limit the universe of acceptable interpretive resources upon which judges rely, textualist interpretive practice is decidedly pluralist, as a clear majority of the Court—including all of the Justices widely considered to be textualists—regularly references several interpretive tools that textualism-in-theory rejects; (2) second, while textualism-in-theory insists that statutory terms be given their date-of-enactment or “original public” meaning, textualism-in-practice regularly uses present-day sources to determine statutory meaning; and (3) third, while textualism-in-theory emphasizes the meaning that statutory terms have in everyday conversational speech, textualism-in-practice relies heavily on sophisticated legal doctrines and constructs. These findings hold true even if we focus exclusively on data from the Court’s most recent 2017-2020 terms, during which the Court’s composition has skewed lopsidedly textualist.

After chronicling these divergences between textualist theory and practice, the article considers and rejects the possibility that they may be attributed merely to faint-hearted judicial application of textualism and that they should be resolved through more disciplined adherence to textualist principles. Instead, the article suggests that textualist interpretive theory may actually be inherently contradictory in ways that give rise to these interpretive divergences; for example, textualism’s commitment to stability may be in tension with its commitment to predictability and fair notice. In the end, the article offers some suggestions for how textualist theory might evolve to both reconcile these internal contradictions and to better account for how textualism actually is practiced on the ground.

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