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Wednesday, August 17, 2022

We’re All Textualists Now… When It Suits Us

Justice Kagan is responsible for two contradictory and fascinating maxims. In 2015, she famously said that “We’re all textualists now.” And then, this summer, she pointedly complained that “The current Court is textualist only when being so suits it.” To my mind, Kagan’s newer statement is descriptively accurate but normatively misdirected. Rather than lamenting the Supreme Court’s suppressed interpretive discretion, she and the other justices should embrace it.

As a newcomer to a conservative Court, Kagan proved that she fit in by honoring textualism. But after the Court shifted further rightward, Kagan fell more often into dissent. And so, having accrued valuable textualist credibility, Kagan is now trying to cash it in. In recent cases on the major question doctrine, for instance, Kagan has started pointing out that the majority is deviating from strict textualism—which, she assumes, is the correct way to do legal interpretation.

There are at least two problems with Kagan’s new approach. First, it isn’t working. The majority is evidently comfortable enough with its own view of the law, including the newfound exception to strict textualism recognized by the major question doctrine. Second, it rests on the controversial notion that textualism is legally correct. Kagan’s natural ideological allies are especially unlikely to agree that textualism is interpretation’s lodestar.

The obvious alternative to what Kagan is doing would be a return to type. Much as Kagan’s predecessor, Justice Stevens, warred against Justice Scalia's textualism, Kagan (or her liberal colleagues) could try to champion non-textualist methods. But that approach is awkward when textualism has garnered so much support. It seems to concede that, under existing interpretive practice, the Court is getting it right. And, of course, textualism has considerable appeal and so is hard to vanquish.

I would like to suggest a third option. The basic idea is to acknowledge that the law of interpretation, while real, is substantially permissive. As a result, the justices have an awful lot of lawful discretion, and the most contested cases do not normally turn on formal law. Rather, many outcomes are determined by informal law, such as a judge’s personal precedents, or non-legal considerations, such as a particular judge’s views on morality or policy.

Acknowledging legal interpretation’s substantial permissiveness would come with a number of benefits. For one thing, permissive interpretation is both descriptively and normatively superior to either embracing or rejecting strict textualism. As Kagan’s recent comments ruefully acknowledge, actual interpretive practice isn’t all that textualist, even when it comes to the current Court. Moreover, textualism’s critics are right that rigid adherence to text would be bad.

Permissive interpretation would also come with several strategic benefits for frequent left dissenters like Kagan. First, it would undermine the majority’s efforts to deflect responsibility by claiming to be bound by law. Second, it would allow the dissenters to show contradictions or hypocrisy among the majority justices and their personal precedents. And, finally, it would establish that what the Court decides today need not be decided the same way tomorrow. 

Of course, permissive interpretation would also come with certain drawbacks. If interpretation is avowedly permissive, then some or all recent majority opinions are probably consistent with the law. Dissenters would therefore have to clarify that their accusations of personal inconsistency do not generally amount to allegations of unlawfulness. The dissenters would also have to own up to the critical role of their own discretion and personal precedents.

Yet even those drawbacks would actually be net beneficial. It is convenient, or easy, for justices to insist both that the law controls all outcomes and that the law is always on their side. But those claims work only when preaching to the choir. And because exaggerated legalism helps the Court deflect even well-taken criticism, it hampers political efforts to check judicial decisionmaking. In truth, the law is both a limit and a license. Dissenters can admit as much.

Take the decision to overrule Roe v. Wade in Dobbs v. Jackson Women’s Health. The left and right are locked in disagreement over whether the outcome in Dobbs was simply prohibited or mandatory. But each position shows why the other is wrong. And, for the left, establishing that Dobbs was discretionary is worth conceding its formal permissibility. Only by revealing the scope of existing interpretive discretion can critics effectively assess both the role of the justices and the appeal of court reform.

If you have followed me this far, the question becomes: How should the justices acknowledge and manage the law’s permissiveness? The answer, I think, is to set rules of legal permissibility—that is, conditions sufficient to show that an interpretation is lawful. In a new draft paper, I’ve argued for just such an approach, which is modeled on the British “basic rules” of interpretation. These rules would mark zones of interpretive discretion where that discretion is most desirable.

I support permissive interpretation because it is correct, or more so than the alternatives. And, in the long run, it’s also in everyone’s best interests. But I’ve framed this post from the perspective of left justices because, as Kagan’s recent comment shows, there is currently an unusual incentive for at least the left wing of the Court to recognize permissive law. By belatedly admitting interpretation’s permissiveness, Kagan has taken an important step toward embracing it.

Cross-posted on Re's Judicata.

Posted by Richard M. Re on August 17, 2022 at 01:13 PM | Permalink

Comments

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Posted by: Kumkum Bhagya | Dec 8, 2022 10:55:50 AM

I honestly love originalism, but I grapple hard with the fact that in practice, legislative bodies, especially now, move.... so incredibly slow. They move so slowly that the original, narrow intent of the law falls out of society's expectations, whereas some might say the "spirit of the law" might match relevant opinion more, and produce an undeniably better outcome. I understand the argument that this is not the job of the judiciary (ie in these cases, legislatures should come along and expand on what they mean). But when the legislative branch simply fails to do that, not entirely out of a disagreement with the expansion, more and more edge cases crop up where I do think it's ultimately better for the judiciary to step in.

Posted by: darbas internetu | Dec 8, 2022 10:11:37 AM

Originalism is distinct from textualism. In textualism, you look at the plain meaning of the text and nothing else. You forget what the Congress passing the law was trying to accomplish or do, and just go by the words on the page. Originalism is what you were describing, it’s that you look at the context and interpret the law as it would have been understood. Scalia usually would justify it on things like homosexuality, abortion, or even gun control as all of those things were present and existed at the time of the laws conception, so the founders or lawmakers knew about it and chose not to include it. The moral standards are different but the Constitution enshrines a set of morals that are meant to be continuous and unchanging, which is why they can’t be added to or made to include other things. Full disclosure, I’m still learning myself but this is what I understand so far. Also, just my two cents. Breyer had a great line once that was something to the effect of “you can have THE Constitution, or you can have a livable Constitution.” It was in one of his conversations with Scalia about judicial philosophy.

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Posted by: Anonymous | Dec 6, 2022 12:51:17 AM

Textualism, literally, is not limited to the legal profession, but that does not change the fact that a rose, by any other name, remains, in essence, a rose. Perhaps someone may argue that that argument is, in essence, too rigid, but on the contrary, a rose remains, in essence a rose, and thus “a rose by any other name would smell as sweet”, unless, of course, you have lost your sense of smell, which has nothing to do with the essence of the rose, but with the interaction of the rose and your nose.

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Posted by: N.D. | Aug 25, 2022 9:34:39 AM

“We’re All Textualists Now… When It Suits Us”

And yet, can anyone here provide a reasonable explanation, grounded in both Science and the spirit of the text of The Nuremberg Code, how continuing the mandating of an injection of a vaccine targeting Covid 19, that does not provide immunity to Covid 19, nor stop the spread of Covid 19, and in some certain individuals, can result in iron deregulation for a period of time, due to the targeting of the spike protein of Covid 19, could possibly be both ethical and legal, and thus an affirmation of both the spirit of the Nuremberg Code and the spirit of our Constitution, when we can know through both Faith and reason, that it is not necessary, nor is it proper, to destroy an innocent human life, in order to save a human life?

And if your answer is “to hell” with The Nuremberg Code, I can only respond, “Woe to us” and rest my case, with the hope that soon, Truth will prevail.

🙏💕


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Posted by: svetaines kurimas | Aug 22, 2022 12:57:05 AM

"The basic idea is to acknowledge that the law of interpretation, while real, is substantially permissive. As a result, the justices have an awful lot of lawful discretion, and the most contested cases do not normally turn on formal law."

I do not know how much to take Kagan's comments simply on face value, but this basic idea is an honest accounting of reality.

Prof. Eric Segall (see, e.g., his latest at Dorf on Law) has continuously railed against how justices operate in what he deems a non-court. At some point, it comes off as a strawman, if he means it is just "anything goes" value judging. But, surely, there is a lot of discretion going on, influenced by a range of things that motivate and influence human judges.

The real battle is over determining what basic guidelines should be followed. Your latest writing here ultimately fills in the details some.

The specifics will be debated. But, your "basic idea" is important too, if one many just don't want to admit. Some argue such a "permissive" interpretation leads to "non-law." To paraphrase Princess Bride, we are people of action, adults, and can admit things are a bit more complex than that.

Posted by: Joe | Aug 20, 2022 11:32:32 AM

“I would like to suggest a third option. The basic idea is to acknowledge that the law of interpretation, while real, is substantially permissive. As a result, the justices have an awful lot of lawful discretion, and the most contested cases do not normally turn on formal law. Rather, many outcomes are determined by informal law, such as a judge’s personal precedents, or non-legal considerations, such as a particular judge’s views on morality or policy.”

Except, of course, when it comes to certain self-evident Truths, such as the fact that, in reality, one cannot be and not be a person, simultaneously; and because every beloved son or daughter possesses inherent equal Dignity, from the moment of creation to natural death, any act that does not respect the inherent equal Dignity of a beloved son or daughter, brother or sister, husband or wife, father or mother, is not, and can never be an act of authentic Life-affirming and Life-sustaining Love.

Posted by: N.D. | Aug 18, 2022 4:41:51 PM

First, and foremost, there is only One Ordered Communion Of Perfect Complementary Love, The Most Holy And Undivided Blessed Trinity, Through The Unity Of The Holy Ghost, but that does not change the fact that when a textual interpretation of a statute serves as a contradiction to the spirit of the Law one is either dealing with a misinterpretation of that particular statute, or that statue itself is a misinterpretation of the law.

Dobbs v. Jackson Women’s Health is unconstitutional because Due Process is binding in both State and Federal Law.
Our inherent, Unalienable Right to Life, the securing and protection upon which our inherent Unalienable Right to Liberty and The Pursuit of Happiness depends, is Endowed to us from our Creator God, at the moment we were created and brought into being, equal In Dignity, while being complementary as a beloved son or daughter, at our conception, which is not the same moment we were born or delivered by Caesarian Section.


Posted by: N.D. | Aug 18, 2022 2:26:17 PM

Just correcting my comment down there:

Should be "uniformity" over "conformity" of course.

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Posted by: estetinis plombavimas | Aug 18, 2022 2:59:33 AM

Thanks, Asher. It certainly seems like you're unpersuaded! Here is a partial riposte for now: (i) a permissive approach would allow the dissenter to simply demonstrate her own position's permissibility and then non-legal appeal, rather than struggle to deny the (equally) plausible arguments on the other side; (ii) we live in a culture of mutually overheated legal rhetoric, and many commentators plausibly argue that greater candor about legal indeterminacy would actually be more, or at least as, persuasive to many readers; (iii) even if readers were unpersuaded, there is a broader point about shaping legal culture and fostering political engagement w/courts to consider; (iv) your point about enriched textualism is reasonable but, as I think you would agree, still controversial among textualists--which only underscores the vast degree of de facto method discretion we currently have. Thanks again.

Posted by: Richard | Aug 17, 2022 9:52:00 PM

Interesting. Yet, courts in the US, deliver or write day by day, countless opinions, decisions, rulings, in every possible legal area:

Family law. Criminal law. Administrative law. Constitutional law. Military law. Maritime law. International law. You name it.

Now, the respectable author of the post, takes, or rather picks up, popular and controversial social issue like abortion, and makes hell of pathological case out of it. This is wrong with all due respect:

The fact, that there is certain legal and constitutional vacuum (emphasizing: vacuum) in certain issue (and even others) doesn't mean, that there is here chronical pathology or problem( that could be solved by simple legislation, not up to the court, but, to the legislator). So, there is no need for any new approach in interpretation of law by courts. Absolutely futile.

There is no need to generate problems here (despite agitated public opinion). Because objectively, the courts work with very impressive methodology and all around conformity. Picking up one or two public controversial, is senseless with all due respect.

P.S: Justice kagan, is simply influenced by public debate, and upset because of the abortion issue. But, beneath all this, there is great essential work day by day done by courts, we all ignore simply, or, do not understand or follow.

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Posted by: El Roam | Aug 17, 2022 8:57:50 PM

First, I think the incentives you describe are patently disincentives to recognize the permissiveness of interpretive methodology. In one world, Kagan can say that textualism is the law and what the Court's doing is unlawful. In your world, she can't say that, but has the advantage of being able to say what, exactly, that she couldn't say before? That her colleagues are exercising their permissive discretion badly? She can still say as a descriptive matter that they're exercising discretion to do something atextual for bad reasons even if what they're doing is also unlawful. Ultimately, all you would really leave her to say is that she's comfortable with broad delegations to agencies and the majority is mistaken as a policy matter to not be comfortable; this is precisely the sort of preaching to the choir argument that you say is unlikely to persuade, while arguing that what the majority is doing is unlawful may convince formalists who share the majority's discomfort with broad delegations. You say that recognizing permission would allow her to point to inconsistency among personal precedent. But she is perfectly free to make those makeweight ad hominem arguments now, in addition to making the stronger one that a (Gorsuch, J.) opinion isn't just inconsistent with another (Gorsuch, J.) opinion, but is inconsistent with the regnant methodology as announced by (Gorsuch et al., JJ.) opinions for the Court.

I'll just say that as to the paper, I find it very puzzling inasmuch as it attempts to compensate for the vast discretion in interpretive methodology it proposes by proposing caricatured "basic rule" forms of the dueling methodologies that no (American, at least) adherent to those methodologies uses, and that are normatively bad. There are very good reasons that textualists disavow literalism. How can you tout a formulation of textualism that doesn't allow for pragmatic enrichment as a good thing, I really can't see. A sensible version of textualism solves, entirely internally to textualism, problems like the old version of CAFA that said you couldn't remove a case in any less than seven days (the solution being, given the context, any reader of the statute would understand the intended communicative content of the statute to be "no more than seven," whether or not any such thing as collective legislative intentions actually exists and whether or not real mental states of members of Congress track that understanding). Under your approach, a judge would instead say, the "literal rule" tells me the statute literally says not less than seven days, but the "golden rule" says that is senseless (maybe?), and depending on my mood today, opinions I've written in the past that I of course have the permission to depart from, and perhaps whether the law gives me "plaudits" for one or the other (this section of the paper I didn't understand at all), I'll be literalist or golden.

Posted by: Asher Steinberg | Aug 17, 2022 4:41:08 PM

Orin, I just saw your second comment. Thanks for it too though I’m not sure I follow, or agree with the view you ascribe to me. Bad faith or judging “falsely” is part of my concern but definitely not all of it, or even the primary concern. And, depending on what you mean, I may well agree that a method can “constrain.” My interests are largely about what the court’s practice actually is, and what the normatively best rules would be, including for good faith judges.

Posted by: Richard | Aug 17, 2022 3:26:45 PM

Thanks, Orin. I think you could find ways of squaring the two statements. But in making the second statement Kagan expressly stated that it seemed she had been “wrong” the first time. And, on balance, I think she was right, or more right, the second time. Some of the people she counted as textualist in the first statement were being removed from the fold in the second one.

Posted by: Richard | Aug 17, 2022 3:16:06 PM

Oh, and to address the broader point relevant to the paper: A common objection to any interpretative methodology that seeks to constrain judges is that judges can write opinions that purport to apply the methodology but that actually do so falsely, in a way that does not constrain them. From that, there are two basic replies. One might be that the methodology does not actually constrain. The other might be that the methodology does constrain, but, like any method of interpretation, it can be applied as window-dressing by a judge who wants to reach a particular result. I gather some of the disagreement between Kagan and Re is which reply is more accurate. I take Kagan's sense of the reality to be the latter, while Re's sense of the reality, on which the paper is based, is the former.

Posted by: Orin Kerr | Aug 17, 2022 3:10:42 PM

I would think the simplest explanation is that Justice Kagan believes other Justices are fair-weather textualists who talk the talk but don't walk the walk.

In that case, I'm not sure I see a contradiction. Her first statement, "we are all textualists now," refers to talking the talk. Her second statement, "the current Court is textualist only when being so suits it," refers to walking the walk.

Posted by: Orin Kerr | Aug 17, 2022 3:03:26 PM

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