Progressive Textualism

• Author: Kevin Tobia, Brian G. Slocum & Victoria Nourse
• Position: Associate Professor of Law, Georgetown University Law Center/Distinguished Professor of Law, University of the Pacific, McGeorge School of Law/Ralph V. Whitworth Professor of Law, Georgetown University Law Center
• Pages: 1437-1493

Progressive Textualism

KEVIN TOBIA*, BRIAN G. SLOCUM**, ANDVICTORIA NOURSE***

Textualism is now the Court’s lingua franca. In response, some have

proposed a “progressive textualism,”defined by the use of traditional tex-

tualist methods to reach politically progressive results. This Article

explores a different kind of “progressive textualism.”Rather than starting

with the desired policy outcome—politically progressive or conservative—

we begin from one of modern textualism’s central values: a commitment to

“democratic”interpretation. As Justice Barrett argues, this commitment

views textualists as “agents of the people”who “approach language from

the perspective of an ordinary English speaker.”Textualists thereby claim

to promote democracy by interpreting law consistently with what it commu-

nicates to the ordinary public. However, recent empirical studies reveal

discrepancies between textualist interpretive commitments and how ordinary

people understand legal texts. These discrepancies call into question claims

that textualists’ methodology is committed to democratic interpretation.

A textualism centered on democratic interpretation would be methodo-

logically more progressive if it centered facts rather than fictions about

how ordinary people interpret language. It would recognize that people

understand legal language in light of linguistic “(co)text”and “(con)

text,”and sometimes nonliterally; they often understand ambiguous

terms in law to have legal, not ordinary, meanings; and their understand-

ing of law is informed by its apparent purpose and sometimes by inter-

pretive rules that are conventionally justified on normative grounds. In

contrast, current textualism is often methodologically regressive, crafting

a fictional “ordinary person”more closely connected to ideological pol-

icy goals than facts about ordinary language comprehension.

TABLE OF CONTENTS

INTRODUCTION..................................................... 1439

I. THEORIES OF TEXTUALISM...................................... 1448

A. THE DEFINING PRINCIPLES OF TEXTUALISM . . . . . . . . . . . . . . . . . . . . 1448

B. THE PRINCIPLES OF TEXTUALISM IN CONFLICT. . . . . . . . . . . . . . . . . . 1453

* Associate Professor of Law, Georgetown University Law Center. ©2022, Kevin Tobia, Brian G.

Slocum & Victoria Nourse.

** Distinguished Professor of Law, University of the Pacific, McGeorge School of Law.

*** Ralph V. Whitworth Professor of Law, Georgetown University Law Center. Thanks to The

Georgetown Law Journal for excellent editorial assistance and to Bill Buzbee, Anita Krishnakumar and

students in her “Advanced Topics in Statutory Interpretation”seminar, Agnes Lee, David Luban, Austin

McComb, and Jesus Rodriguez for their helpful comments.

1437

C. A NEW APPROACH: METHODOLOGICALLY PROGRESSIVE TEXTUALISM 1455

II. TEXTUALISM AND CONTEXT..................................... 1458

A. CHOICE OF TEXT AND CONTEXT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1459

1. Smith v. United States and Sentence-Level Context. . . . . 1461

2. King v. Burwell and Holistic Context . . . . . . . . . . . . . . . 1464

B. INTERPRETIVE RULES AND NONLITERAL INTERPRETATIONS. . . . . . . . 1465

1. Quantifiers and Nonliteral Meanings. . . . . . . . . . . . . . . . 1467

2. Ali v. Bureau of Prisons and Nonliteral Meanings . . . . . . 1468

3. Existing Canons that Produce Nonliteral Meanings. . . . . 1470

4. McBoyle v. United States and Nonliteral Meanings. . . . . 1471

5. Gender and Number Canons and Nonliteral Meanings . . 1472

III. TEXTUALISM AND BROADER INTERPRETIVE RULES................... 1473

A. ORDINARY VERSUS LEGAL MEANING . . . . . . . . . . . . . . . . . . . . . . . . . 1475

1. The Textualist Version of Ordinary People. . . . . . . . . . . 1477

2. Ordinary People and Legal Meaning. . . . . . . . . . . . . . . . 1478

3. Operationalizing Legal Meaning. . . . . . . . . . . . . . . . . . . 1479

B. PRESUPPOSITIONS AND NORMATIVE VALUES . . . . . . . . . . . . . . . . . . . 1480

1. Textualists and Interpretive Canons . . . . . . . . . . . . . . . . 1481

2. Presuppositions and Clear Statement Rules. . . . . . . . . . . 1483

3. Ordinary People and Substantive Canons . . . . . . . . . . . . 1486

IV. TEXTUALISM AND PURPOSIVE INTERPRETATION...................... 1488

CONCLUSION...................................................... 1492

1438 THE GEORGETOWN LAW JOURNAL [Vol. 110:1437

INTRODUCTION

Justice Kagan has rescinded her statement of textualism’s ubiquity: “Some years

ago, I remarked that ‘[w]e’re all textualists now.’ . . . It seems I was wrong. The current

Court is textualist only when being so suits it.”

1

Today, most judges claim fidelity to

the text’s meaning, but not all succeed. As this Article explains, some self-proclaimed

“textualists”ignore text when convenient, rely on shoddy interpretive methods, and

cling to fictions about how ordinary people understand language. Textualism sits at the

heart of modern judicial interpretation, especially at the Supreme Court. Between 2005

and 2017, the Roberts Court relied on “text”or “plain meaning”arguments in almost

fifty percent of majority or plurality opinions concerning statutory meaning.

2

“Ordinary”or “public”meaning is prioritized across both statutory and constitutional

interpretation,

3

at the Supreme Court and within the lower federal courts as well.

4

Even

in legal academia, a majority of professors report that they accept or lean toward textu-

alism in statutory interpretation.

5

While courts increasingly rely on textualist principles

to resolve interpretive disputes,

6

high-profile cases and empirical studies illustrate that a

general commitment to the text does not guarantee uniform results, or e ven a consistent

textualist theory.

7

Against this backdrop—that we are all “textualists now”(or at least

claim to be)—the pressing question is: Which kind of textualism?

8

1. Justice Kagan remarked, “we’re all textualists now,”in Harvard Law School, The 2015 Scalia

Lecture jA Dialogue with Justice Kagan on the Reading of Statutes,Y

OUTUBE, at 08:29 (Nov. 25,

2015), https://youtu.be/dpEtszFT0Tg. This statement depends upon an essential ambiguity: whether one

begins or ends with the text. Kagan’s recent recission comes in West Virginia v. Env’t Prot. Agency, No.

20-1530, slip. op. at 28 (U.S. Feb. 28, 2022) (Kagan, J., dissenting).

2. See Anita S. Krishnakumar, Cracking the Whole Code Rule, 96 N.Y.U. L. REV. 76, 97 tbl.1 (2021)

(referring to cases decided between 2005 and 2017).

3. See William N. Eskridge, Jr. & Victoria F. Nourse, Textual Gerrymandering: The Eclipse of

Republican Government in an Era of Statutory Populism, 96 N.Y.U.L. REV. 1718, 1720 (2021).

4. See David Zaring, The Organization Judge,U.C

HI.L.REV.ONLINE (Sept. 25, 2020), https://

lawreviewblog.uchicago.edu/2020/09/25/zaring-judge/ [https://perma.cc/GL8T-FFBK] (describing the

large cohort of young Trump judicial appointees).

5. See Eric Martı

´nez & Kevin Tobia, What Do Law Professors Believe about Law and the Legal

Academy? An Empirical Inquiry. 44 (Feb. 27, 2022) (unpublished manuscript) (on file with authors).

Note that many of these respondents also accepted another option, such as purposivism, suggesting that

many take themselves to be pluralistic textualists.

6. See John F. Manning, Textualism and Legislative Intent,91V

A.L.REV. 419, 419–20 (2005)

(explaining that at the close of the twentieth century “‘textualism’ emerged, producing a rather

significant effect on both judicial behavior and academic writing”).

7. Compare Bostock v. Clayton County, 140 S. Ct. 1731, 1743 (2020) (“For an employer to

discriminate against employees for being homosexual or transgender, the employer must intentionally

discriminate . . . in part because of sex.”), with id. at 1757 (Alito, J., dissenting) (“Title VII does not

reach discrimination because of sexual orientation or gender identity.”), and id. at 1825 (Kavanaugh, J.,

dissenting) (urging the Court to follow “ordinary meaning”rather than “literal meaning”). See generally

Victoria Nourse, United Philosophy-Divided Court: Interpretive Conflict on the Trump Court (Mar. 3,

2022) (unpublished manuscript) (on file with authors) (analyzing the 2020 Term).

8. For examples of literature analyzing new forms of textualism, see generally Victoria Nourse,

Textualism 3.0: Statutory Interpretation After Justice Scalia,70A

LA.L.REV. 667 (2019); Tara Leigh

Grove, Comment, Which Textualism?, 134 HARV.L.REV. 265 (2020); and Kevin Tobia & John

Mikhail, Two Types of Empirical Textualism,86B

ROOK.L.REV. 461 (2021). “Textualism”is a term

sometimes confused with originalism. Public meaning originalism starts with the constitutional text, but

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