September 14, 2015

How Textualism Postures

2015 Constitution Day Symposium, Joseph Kimble, Justice Scalia, textualism

by Joseph Kimble, Distinguished Professor Emeritus, WMU-Cooley Law School

*This post is part of ACSblog’s 2015 Constitution Day Symposium.

In Reading Law, Justice Antonin Scalia and Bryan Garner make this assertion about the interpretive theory called textualism, which they endorse and expound:

[W]e must lay to rest at the outset the slander that [textualism] is a device calculated to produce socially or politically conservative outcomes. Textualism is not well designed to achieve ideological ends, relying as it does on the most objective criterion available: the accepted contextual meaning that the words had when the law was enacted. A textualist reading will sometimes produce “conservative” outcomes, sometimes “liberal” ones. [Reading Law, p. 16.]

But that assertion is belied by the overwhelmingly conservative results that textualism does in fact produce, especially in the cases that matter most. Who can honestly doubt it?

In a recent article, I’ve summarized six empirical studies. (See pp. 30–35 for details and attribution.) Four of the studies show a strong ideological bent in Justice Scalia’s opinions. Another concludes from an analysis of more than 600 Supreme Court cases that the textual canons of construction “are regularly used in an instrumental if not ideologically conscious manner.” The other study examines a 25-year set of the Court’s cases and concludes that a principal defense of originalism — its constraining effect on judges — “is overstated at best and illusory at worst.”

In one of the studies, Professor Geoffrey Stone polled colleagues to identify the 20 most important Supreme Court cases since 2000. In every one, Justice Scalia voted for the conservative position. And Stone notes that originalism “in no way” explains that voting record.

Besides the empirical studies, I cite 11 other sources that cast doubt on the neutrality and consistency of Justice Scalia’s textualism. (P. 35 note 96.)

My contentions are these:

  • Most importantly, at least as textualism is practiced, it has no claim to rising above politics — no claim to ideological purity or neutrality.
  • The fact that Justice Scalia may have supported some “liberal” decisions is largely insignificant in light of his overall record.
  • It’s no answer to cite the record of other judges or to argue that other theories are even more open to manipulation: textualism purports to operate on a loftier “rule-of-law” plane. But it doesn’t.        
  • As stated by Professor Margaret Lemos, textualism and its alternatives have become “political brands, marking judges as liberal or conservative.” (P. 37.) Textualism is, of course, the conservative brand.

My article also addresses textualism’s well-known antipathy toward almost all legislative history as an aid to interpretation. I list a dozen arguments to support its validity and value — including its constitutional and historical foundation, the realities of the legislative process, the bipartisan view of lawmakers, and recent real-world studies of congressional and legislative drafters. (Pp. 38–40.) The canons of construction, as a group, have no superior claim to legitimacy, orderliness, reliability, or acceptance. And judges are no less capable of making informed, sensible decisions about legislative history in a case than they are about sorting through the interplay of the canons

To get an idea of how bewildering that interplay can be, you could start on the first page of the article. Or start on 28 for more on textualism’s (supposed) objectivity and (misguided) rejection of legislative history.

Constitutional Interpretation, Supreme Court