Back in September I flagged a forthcoming article by Richard Re, in The Green Bag. The piece is now out, and it is brilliant. This is one of those things that you read and you say, “Damn, why didn’t I think to write that?” If you want to understand the state of the textualism-purposivism debate over statutory interpretation at the Supreme Court, this is the place to start.
I used an excerpt of Richard’s piece for a reflection question on my recent Legislation exam. Here’s the excerpt:
There’s a familiar story about statutory interpretation in the Supreme Court. Once upon a time, the Court cared primarily about legislative purpose, even if it defied clear statutory text. But then Antonin Scalia came to town, became a justice, and laid down a new law: textualism. Legislative purpose is largely a fiction, Scalia argued, and even if it were real, text would be the only a reliable evidence of its content. The era of “New Textualism” had dawned.
Central to Scalia’s success was his association of purposivism with a century-old precedent called Holy Trinity. Not only did Holy Trinity expressly elevate purpose over text, but it also rested its purposive reasoning on an objectionable view of law and religion, noting for instance that “this is a Christian nation.” So if Holy Trinity was right, then a lot of people would rather be wrong. Or so went the prevailing view. It didn’t happen in a day or a year, but eventually Holy Trinity was overthrown.
Recently, however, [in cases like King v. Burwell] purposivism seems to have evolved and, as a result, to have gotten the upper hand. Instead of adhering to the New Textualism, the Roberts Court has repeatedly and visibly embraced what might be called “The New Holy Trinity.” This approach calls for consideration of non-textual factors when determining how much clarity is required for a text to be clear….It rests on attention to three considerations: text, pragmatism, and purpose.
To some extent, the New Holy Trinity is an extension of previous doctrinal trends. In the last few years [in cases like NAMUDNO], the Roberts Court has made creative use of the avoidance canon, which calls for the Court to interpret statutes to avoid asserted constitutional problems. I myself have written on that trend, as have others. But we commentators just report the game. We don’t call the plays. So it should be no surprise that the Roberts Court has kept ahead of the law reviews. Now, instead of limiting itself to avoidance, the Court avoids undesirable textual results without invoking the Constitution at all. Indeed, the Court sometimes seems to go out of its way to avoid using avoidance in statutory cases. This apparent methodological shift merits attention….
Interpreters must decide how much textual clarity is necessary to make a text clear. The New Textualism meets that need through a rule: legal ambiguity must be discoverable in text alone. By contrast, the New Holy Trinity would embrace a standard: legal ambiguity can spring from a mix of text, purpose, and pragmatism. These two approaches usually arrive at the same place. Most textualist readings don’t threaten shocking effects or disruptive consequences.
The text is therefore honored as the best evidence of legislative goals, even if the result seems unprincipled or unwise. In those banal cases, a banal textualism reigns supreme. But when a statute’s central objective is at risk or an otherwise plausible reading leads to alarming results, believers in the New Holy Trinity hold the text to a higher-than-normal standard. In those unusual but pivotal cases, banal textualism stands aside, and a more dynamic mode of interpretation takes command.