The Ideology of Textualism

Advocates of textualism promote it as a neutral, objective, apolitical theory of interpretation — one that is above ideology. Whenever you hear a judge describe himself or herself as a “rule of law” judge, you can bet that the judge is a textualist. A textualist supposedly respects the democratic process and does not impinge on the legislature’s role. He or she adheres to established and well-founded canons of construction in merely “interpreting” law. As Justice Gorsuch put it in his first majority opinion (page 11), “[T]he proper role of the judiciary [is] to apply, not amend, the work of the People’s representative

That is the mantra. But the reality is altogether different. Textualism has become the brand of conservative judges and judging. And there is in fact strong — if not incontrovertible — evidence that textualism, as practiced, produces conservative results.

Two years ago, I posted on the ACS blog about an article I had written summarizing six empirical studies of Justice Scalia’s opinions. The studies show that those opinions had an unmistakable ideological bent. Justice Scalia was, of course, a leading exponent of textualism.

Now I have published a detailed study of 96 overrulings by the Michigan Supreme Court over 15 years, 2000–2015. Throughout that time (except for a period of months in 2010), justices nominated by the Republican party or appointed by a Republican governor were in the majority on the court. Those justices are professed textualists.

In my study, I coded the civil cases according to whether they made it harder to sue and recover or get relief, or made it easier to sue. I coded the criminal cases according to whether the overruling favored the prosecution by making it easier to convict, harder to get a charge dismissed, harder to appeal, harder to get a resentencing, and so on — or whether the overruling favored the defendants in some way. Of the 96 overrulings, 15 did not fit these categories, leaving 81.

Take a wild guess at the results. I am betting that even most cynics would not imagine how extreme the numbers are. In 46 of 48 civil cases, Republican majorities voted in a way that makes it harder for plaintiffs to successfully sue. In 32 of 33 criminal cases, Republican majorities favored the prosecution. All told: civil plaintiffs and criminal defendants lost in 78 of 81 overrulings, for an ideology rating of 96.3.

Some would say that a simple tally of winners and losers is superficial. My response (p. 355): “I disagree. Lopsided numbers matter. That civil plaintiffs and criminal defendants ‘won’ in just 3 of 81 overruling cases is damning on its face — and cannot be rationalized by any jurisprudence that is evenhanded.”

Equally extreme is the narrow definition of ambiguity that the Republican majority adopted: language is ambiguous only if it is “equally susceptible” of more than one meaning. So is a 55% certainty enough to render a text clear? Few, if any, other courts apply such a strict test. One commentator describes it (p. 358) as “[i]nconsistent with centuries of American judicial practice.”

The article also looks at some favorite textualist devices: overreliance on “plain meaning” or “plain language”; resort to dictionaries (a practice that scholars have shown to be ad hoc, subjective, and of modest value at best); and the use of weak canons like the surplusage canon (which many scholars again roundly criticize and which does not reflect how legislative drafters actually compose). Finally, the article examines four overruled cases to show how close they were and why the disputed language was, in context, anything but plain.

My kick is not so much against judges’ leaning one way or another, liberal or conservative. The legal world would be better off if they did not, but they do: judges are influenced, consciously or unconsciously, by their beliefs and inclinations — their so-called priors. My kick is against not recognizing or admitting two truths: textualism is as squishy as any other theory of interpretation; and in cases that shape the law, it is put to ideological ends.

How Textualism Postures

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.