Abstract

Textualism has won the statutory interpretation wars. But despite this theoretical and methodological victory, textualism as practiced on the ground has proved less transformational than expected. Indeed, contrary to what textualist interpretive philosophy long has promised, the widespread embrace of textualism by judges on the ground has not resulted in any real clarity or predictability about the interpretive path—or even the specific interpretive tools—courts will invoke to construe a statute in a particular case. Part of the reason for this lack of predictability is that textualism as practiced often differs significantly from the approach that textualism as an interpretive philosophy advertises; and part of the reason is that textualist philosophy 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 philosophy and textualism as practiced on the ground.

This Article provides the first empirical and doctrinal analysis of three places where modern textualist interpretive practice diverges—sometimes sharply—from textualist interpretive philosophy. Based on 637 cases decided during the Roberts Court’s first fifteen-and-a-half terms, the Article highlights three surprising textualist points of divergence. First, although textualist philosophy seeks to limit the universe of acceptable interpretive resources upon which judges rely, textualism in practice is decidedly pluralist, as a clear majority of the Court, including all of the Justices widely considered textualists, regularly references several interpretive tools that textualist interpretive philosophy rejects. Second, although textualist philosophy 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. Third, although textualist philosophy 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 2017–2021 Terms, during which the Court’s membership has skewed lopsidedly textualist.

After chronicling several divergences between textualist interpretive philosophy and textualist practice, the Article considers and rejects the possibility that such divergences can be chalked up to faint-hearted judicial application of textualism—and that the solution should be more disciplined adherence to textualist principles. Instead, the Article suggests that textualist interpretive philosophy 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 philosophy might evolve to both reconcile these internal contradictions and better account for how textualism actually is practiced on the ground.

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