“Textualism and Stare Decisis”

New from Anita Krishnakumar:

On the surface, textualism and the doctrine of statutory stare decisis seem to have much in common — both are rule-bound and emphasize predictability and stability in the law, legislative supremacy, the need to limit judicial discretion, and the need to preserve the legitimacy of the Court as an institution. Yet, in practice, textualist jurists — at least at the Supreme Court level — have proved quite willing to abandon statutory stare decisis and to argue in favor of overruling established statutory precedents. Why? This paper advances a twofold thesis. First, it argues that textualism suffers from a “correct answer” mindset, which makes it especially difficult for its proponents to accept the idea that an incorrect statutory interpretation should be left in place simply because it was first in time. While others have noted that this tension between accuracy and stare decisis poses problems for textualists, they have tended to brush it off as a tension that also affects other interpretive theories and to insist that textualism can and does give way to statutory stare decisis as a matter of necessity. Second, and more importantly, this paper argues that textualist jurists tend to view statutory precedents that create a test for implementing a statute as different from more ordinary parsing-the-text statutory interpretation. That is, textualist jurists regard implementation-test precedents as akin to common law decision-making, rather than statutory interpretation—and seem to have created a de facto “implementation test” exception to the heightened stare decisis protection typically afforded to statutory precedents.

The paper begins by providing several examples of cases in which textualist Justices on the U.S. Supreme Court have rejected statutory stare decisis and voted to overturn a statutory precedent. The argument is largely descriptive but has significant theoretical and normative implications. In particular, the implementation-test insight suggests a new and previously unexplored explanation for the judicial treatment of congressional overrides and the shadow precedent phenomenon that some scholars have observed. The distinction between implementation tests and text-parsing statutory construction also highlights important and underappreciated differences between textualist and purposivist visions of the judicial role in statutory interpretation. In the end, the paper both supports and critiques the implementation test exception to statutory stare decisis. It argues that the Supreme Court should be free to reexamine implementation tests that have been criticized by lower courts as confusing or unworkable in practice. But for separation of powers reasons, and in order to preserve stability and predictability, the Court should limit this implementation test exception to only those contexts in which substantial lower court criticism is present.

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