At the Harvard Law Review Blog, Elias Neibart: How We Talk About Textualism and Its Tools. From the introduction:
In this year’s Scalia Lecture at Harvard Law School, Judge Rachel Kovner asked: “Are We All Textualists Now?” Of course, she was riffing off Justice Kagan’s quip at the 2015 Scalia Lecture. But ten years later, Judge Kovner wondered if Justice Kagan’s observation still rings true.
During her thoughtful remarks, she observed that, today, the Supreme Court seems comfortable and even eager to reference “context” when interpreting text. And while the precise contours of “context” remain a bit ill-defined, Judge Kovner persuasively argued that what the Court calls “context” can look an awful lot like purpose in all but name. She cited Pulsifer v. United States as one example of this phenomenon.
But we’ve been taught that purpose — or rather, purposivism — is the reputed foe of textualism. In fact, Justice Scalia’s brand of textualism, or so the story goes, was originally framed as an alternative to the purposivist approach once dominant in law schools and courts around the country. How, then, Judge Kovner asked, can we all still be textualists if textualism today includes the use of seemingly purposivist tools like “context?”
Put another way: The Judge asked us to consider whether the Court’s current use of “context” — and similar tools — is consistent with textualism.
That sort of question is familiar. It takes an interpretive tool and asks whether its use is consistent with an interpretive methodology. But what do we really mean when we ask if X tool is consistent with Y method? And, more importantly, is this framing the best way to think about the relationship between interpretive tools and methodologies?
This blog post proposes a different way to frame this type of question: When we ask if X tool is consistent with Y method, what we are really asking is whether X tool does a good job of achieving what Y method seeks to achieve. That’s an empirical question. It can’t be answered ex ante. Maybe X is good at doing that. Or maybe it’s bad. But either way, we need evidence — we need to see if X can actually get us to Y. Importantly, that means that, in theory, any X can be “consistent” with a given Y, so long as X does a good job at the thing Y seeks to do.
And in conclusion:
We can’t say whether any interpretive tool is “consistent” with textualism ex ante. We have to see that tool in action. If, as an empirical matter, that tool helps interpreters uncover the plain meaning of text, its use is consistent with textualism. But if it doesn’t, then you have to kick it to the curb. This means that any tool — legislative history, purpose, or context — can be used consistent with textualism. If a textualist invokes one of these tools, we should ask ourselves: “Is that tool doing a good job at shedding light on plain meaning?” That’s an empirical question. And if the answer to that empirical question is “yes,” we can use those tools and still call ourselves textualists. So, if “context” does aid the Court in uncovering plain meaning, then we are all still textualists now.
Seems right to me.
I would say (which I think amounts to about the same thing) that textualism is about finding the meaning of the words and phrases of text, so if that's what you are doing, you are doing textualism regardless of what you look at to find that meaning. (You might be doing a bad job of it, by looking at weak evidence, but that's different.) And if you are doing something else, you are not doing textualism, regardless of what tools you are using. (This is related to my brief point about textualism and structural reasoning in a recent post).
Posted at 6:05 AM