Joseph Kimble (WMU-Cooley Law School) has posted What the Michigan Supreme Court Wrought in the Name of Textualism and Plain Meaning: A Study of Cases Overruled, 2000–2015 (Wayne Law Review, Vol. 62, No. 3, 2017) on SSRN. Here is the abstract:
This article reviews and codes 96 cases overruled by the Michigan Supreme Court during 15 years. Those overrulings, made by justices who are textualists, show a strong ideological tilt toward conservative results. Along the way, the article discusses plain meaning (or plain language) in interpretation, definitions of ambiguity, the use of dictionaries, and the surplusage canon. The article concludes that, in practice, textualism is not nearly as objective and politically neutral as it professes to be.
Also from Professor Kimble, the short version, at the ACS Blog: The Ideology of Textualism. From the introduction:
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.
RELATED (from earlier): John O. McGinnis at Law and Liberty: The Good Justice is Just a Judge by Another Name. From the introduction:
Supreme Court observers have expressed surprise and some have voiced criticism that Neil Gorsuch has been so assertive at oral argument and in his opinions so early in his tenure. Most justices have taken some time to decide how to approach this very important job. Justice Stephen Breyer in fact claimed he was “frightened to death” for his first three years.
But Gorsuch’s confident performance flows directly from his formal conception of law. Being a Supreme Court justice for a formalist is no different from being any other kind of judge and in particular no different from being the Court of Appeals judge Gorsuch had been for over ten years. Under this view, the lawful judge should render judgment on the basis of his best judgment about the meaning of statutory and constitutional provisions that are put before him or her and candidly set out the reasoning in support, regardless of the political consequences and regardless of what others think. Thus, as a formalist and experienced judge Justice Gorsuch was able to act forcefully from day one on the Supreme Court.
With this response from Eric Segall at Dorf on Law: Justice Gorsuch and Foolish Formalism. From the introduction:
Professor John McGinnis wrote an essay at the Law & Liberty Blog praising Justice Gorsuch for his commitment to a “formal conception of law.” While others have criticized Gorsuch for his aggressive questioning and decision-writing so early in his SCOTUS career, McGinnis defended Gorsuch, arguing that his confidence stems from Gorsuch’s view that a “lawful judge should render judgment on the basis of his best judgment about the meaning of statutory and constitutional provisions that are put before him or her and candidly set out the reasoning in support, regardless of the political consequences and regardless of what others think.” According to McGinnis, being a Supreme Court Justice for a formalist is "no different from being any other kind of judge.” Because Gorsuch is an “experienced judge” who believes in formalism, he “was able to act forcefully from day one on the Supreme Court.”
Professor McGinnis is a respected scholar. His views on originalism, in a book he wrote with Professor Michael Rappaport, are interesting, provocative, and need to be taken seriously (which I do in my forthcoming book). But this praising of Justice Gorsuch, and his commitment to formalism, is both unpersuasive and dangerous.
Posted at 6:45 AM