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Monday, December 07, 2015

Justice Kagan on Textualism’s Success

Justice Elena Kagan recently gave the “Scalia Lecture” at Harvard Law School. The event, which is visible online, consisted of a conversation between Kagan and Professor John Manning. For those interested in interpretive trends at the Court, this video is worth watching.  As a scholar-jurist, Kagan speaks both broadly and specifically about her approach to text. And besides being erudite and accessible, the conversation manages to be charming, too.

Kagan’s lecture reinforces a conventional wisdom on textualism’s recent success. Early on (9:10), Kagan beautifully describes the Scalian turn in statutory interpretation while acknowledging its incompleteness. Over time, anti-textualist views have fallen away, so that the center of gravity has moved toward Scalia. Yet Scalia still lies near one end of a spectrum. Both Kagan and Manning adduced evidence of this shift. But the most powerful proof of this claim is the lecture itself. When Kagan, a recent democratic appointee to the Supreme Court, gives a “Scalia Lecture” at Harvard Law School and says (8:25) that “we’re all textualists now,” she has already gone a long way toward proving that point.

But even Kagan’s nuanced lecture, like the conventional wisdom, may give an exaggerated impression of textualism’s ascendance. While certain strong versions of purposivism are all but vanquished, the Court’s most recent term and even Kagan’s own comments suggest that a more moderate, evolved form of purposive reasoning is alive and well.

Under an emerging approach that I’ve called the New Holy Trinity, purpose and pragmatism lack absolute power to trump textual considerations, as they might have done in days gone by. But purposive and pragmatic arguments can still help determine how much clarity is required for a text to be clear. In other words, the New Holy Trinity holds that the standard for textual clarity is generally set in part based on purpose and pragmatism.

We can see the New Holy Trinity by contrasting Kagan’s criticisms of legislative history with her attention to purpose and pragmatism. When it comes to legislative history, Kagan is firm that courts should not use legislative history to muddy or trump clear text (~27:00). Indeed, she calls such a thing “perverse.” This stance is critical, for textualists like Scalia claim that that clear text is clearly binding, except perhaps for scrivener’s errors. But Kagan takes a different approach when faced with arguments from statutory purpose and pragmatism. In a careful statement, Kagan says (21:15): “When you look at a word and you say, ‘That obviously means X,’ and then that X defeats the entire function of the statute, you should look a little bit harder.” So purpose adjusts the textualist inquiry, creating ambiguity where there would otherwise be clarity. This reasoning, if generalized, would amount to the New Holy Trinity.

Moreover, Kagan’s remarks reveal that the Court’s recent record on textualism is mixed. Interestingly, Kagan spends a significant amount of time talking about a case that exhibited New Holy Trinity reasoning: Yates v. United States. There, the question was whether a fish was a “record, document, or tangible object.” Kagan is emphatic (42:00) that the textualist answer was clearly “yes,” saying that she won’t understand the contrary view—that a fish isn’t a “tangible object” under the statute—even if she lives to be 100. Yet Kagan was in dissent in that case, playing the role normally filled by Justice Scalia (who joined her 4-justice opinion and presumably assigned her the dissent). So in what Kagan herself regards as a clear test case for textualism in the Roberts Court, textualism failed.

And then there’s King v. Burwell, the highly significant healthcare subsidies opinion that Kagan joined last term and that is saturated with purposive and pragmatic arguments. Notably, Professor Akhil Reed Amar has recently argued that King, though authored by Chief Justice Roberts, was actually a “classic Breyeresque opinion” that emphasized purpose and policy, proving that “Breyer has now gotten inside Roberts’s head.” Since Kagan acknowledges that Breyer is the least textualist justice (an “outlier,” as she puts it), the evident similarity between King’s reasoning and Breyer’s does not bode well for textualism.  

Though she doesn’t mention King, Kagan emphasizes textualism’s compatibility with whole-statute reading, statutory purpose, and practical consequences. For instance, she observes that “textualism involves some amount of common sense.” And she defines pragmatism (21:00) with reference to the statute at issue: “If your understanding of some word or phrase would produce some result that seems pretty nuts—and nuts in the context of a statute, mostly is what I mean—then you should just ask yourself whether you’re appropriately looking at the entire statute.” Whether these remarks are textualist depends on their implementation. Again, even Scalia sometimes attends to “common sense,” such as when identifying scrivener’s errors. But it’s still significant that Kagan emphasizes these points because—as King illustrates—textualism becomes less textualist as it pays greater attention to what qualifies as “common sense” or “pretty nuts.”

Kagan's willingness to consider purpose and pragmatism casts her textualist decisions in a different light. At one point, Kagan observes that both her Yates dissent and her opinion for the Court in Milner v. Department of the Navy pointed out the possible need for legislative correction. Thus, Kagan explains, she is prepared to follow clear text even when it strikes her as misguided. But it seems possible that Kagan simply didn’t see the statutory texts in those cases as so misguided as to be “pretty nuts" -- in which case, banal textualism would of course decide her vote. By contrast, perhaps Kagan felt that a textualist approach in King would indeed produce radical results contrary to “common sense,” thereby raising the bar for textual clarity. If so, then Kagan would be following banal textualism only in cases involving normal stakes. When purpose and pragmatism weigh more heavily, Kagan may raise the bar for textual clarity—consistent with the New Holy Trinity. 

Or do the Court’s recent decisions actually suggest that Kagan is one of the most textualist justices—indeed, more textualist than, say, Chief Justice Roberts? That possibility would explain Kagan’s textualist opinion in Milner. It would also explain how Chief Justice Roberts could side with the Court in Yates, leaving Kagan in textualist dissent with Scalia. And, finally, it might explain Kagan’s decision to join the Chief’s New Holy Trinity opinion in King—but only if we assume that Kagan had her own, more textualist theory of that case.

In fact, there is good reason to think that Kagan did have her own, less purposive and pragmatic approach in King. Consider this passage from the King oral argument:

JUSTICE KAGAN: Can can I offer you a sort of simple daily life kind of example which I think is linguistically equivalent to what the sections here say that Justice Breyer was talking about?

So I have three clerks, Mr. Carvin. Their names are Will and Elizabeth and Amanda. Okay? So my first clerk, I say, Will, I'd like you to write me a memo. And I say, Elizabeth, I want you to edit Will's memo once he's done. And then I say, Amanda, listen, if Will is too busy to write the memo, I want you to write such memo.

Now, my question is: If Will is too busy to write the memo and Amanda has to write such memo, should Elizabeth edit the memo?


This is a characteristically insightful question from Kagan. But what matters for present purposes is that Kagan is focused on textual statements from “daily life” that are “linguistically equivalent” to the statute at issue. In pursuing this inquiry, Kagan is setting aside all the arguments about statutory purpose and pragmatism that the Chief would ultimately rely on in his opinion for the Court.

Now, Justice Alito had a characteristically insightful response to this hypo (“[If] I said, ‘This is a great memo, who wrote it?’ Would the answer be, ‘It was written by Will, because Amanda stepped into Will's shoes’?”), so perhaps Kagan ultimately found her own suggested line of textualist reasoning to be unpersuasive. It would be interesting to know what Kagan thinks about the relationship between her textualist oral argument question and the Chief’s purposive and pragmatic opinion in King.

There’s much more of interest in the video, including a terrific student question at the very end about determining how much clarity is required for a text to be clear. And Kagan intriguingly speculates about the relationship between an interpreter’s general intellectual disposition and willingness to find textual clarity.

But, for me at least, the most interesting discussion centered around the half-full, half-empty nature of Scalia’s textualist accomplishment. At one point, Kagan jokingly remarked (22:20) that Scalia should sometimes consider declaring “victory" instead of so insistently demanding what he regards as 100% textualist compliance. But Kagan’s own Scalia lecture shows that the textualist program—whether wise or foolish—still has quite a bit more to hope for.

Posted by Richard M. Re on December 7, 2015 at 08:00 AM | Permalink


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