Richard Re has posted this draft on SSRN (forthcoming Green Bag):
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. Central to Scalia’s success was his association of purposivism with a century-old precedent called Holy Trinity. Recently, however, purposivism seems to have evolved and, as a result, to have gotten the upper hand. Instead of adhering to Scalia’s 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. This apparent methodological shift merits attention — and may have implications for constitutional law.
Looking forward to reading this!