Jesse Snyder (independent) has posted How Textualism Has Changed the Conversation in the Supreme Court (University of Baltimore Law Review, Vol. 48, No. 3, 2019) (23 pages) on SSRN. Here is the abstract:
This paper argues that Mount Lemmon Fire Dist. v. Guido, 139 S. Ct. 22 (2018) is a sleeper decision that should receive greater appreciation and reflection because the method of statutory interpretation on display seemingly caped a transition of displacement from divining intent through a variety of sources — including legislative history — to wholesale reliance on the statutory text. That Mount Lemmon passed without comment shows how far textualism has come in 30 years. In two parts, this article first introduces how textualism as an interpretative method began to shape and take hold as a dominate approach to legal reasoning in the Supreme Court. This article then examines how appellate courts, without the benefit of the Supreme Court’s conclusive endorsement of textualism, have approached the question presented in Mount Lemmon. The final section studies Mount Lemmon and observes what the decision means for litigants. Mount Lemmon enshrines a break from decisions dating from the founding era through the 1970s, making risible in the Supreme Court usage of once-unexceptionable advocacy based on pragmaticism and extratextual considerations. The decision shows that, for the mine-run of cases, the interpretative process in the Supreme Court begins — and unless compelling reasons counsel otherwise — ends with the text. The pendulum has swung, and the movement appears to have reached a near-apex resting point. Whether that resting point comes an inflection point toward something else remains unanswered. Yet it should not be lost that Mount Lemmon delivered a viable progressive victory to aggrieved employees. So while textualism is generally extolled as a conservative appellation, the right arguments can, in some cases, produce victories no matter the cause.
Agreed! (But it's not quite true that the Mt. Lemmon decision "passed without comment"!)
Posted at 6:31 AM