Anita Krishnakumar has posted this draft on SSRN (forthcoming, Virginia Law Review). Here is the abstract:
This Article seeks to shed light on a little-noticed trend in recent U.S. Supreme Court statutory interpretation cases: The Court’s textualist Justices—or at least some subset of them—have proved remarkably willing to abandon stare decisis and to argue in favor of overruling established statutory interpretation precedents. This is especially curious given that statutory precedents are supposed to be sacrosanct; Congress, rather than the Court, is the preferred vehicle for correcting any errors in the judicial construction of a statute and courts are to overrule such constructions only in rare, compelling circumstances. What, then, accounts for the textualist Justices’ brazen willingness to overrule statutory precedents in recent years? And how can this practice be reconciled with textualism’s core aims of promoting clarity and stability in the law?
This Article advances a threefold thesis. First, it argues that the textualist Justices view precedents that create a test for implementing a statute (e.g., the “motivating factor” test for Title VII violations) as different from ordinary text-parsing statutory interpretation (e.g., “labor” means “manual labor”). More specifically, textualist jurists regard what I call “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 normally afforded statutory precedents. Second, the Article links textualist Justices’ proclivity to overrule to an oft-unspoken predicate assumption of textualism—i.e., that there is a singular “correct answer” to every question of statutory interpretation. This assumption may make it especially difficult for textualist jurists to accept the idea that an incorrect statutory interpretation should be left in place simply because it was first in time. Last, the Article notes that some textualist jurists see themselves as “revolutionaries,” whose function is to overthrow the old, corrupt jurisprudential order—including outmoded precedents reached through the use of illegitimate, atextual interpretive resources.
Ultimately, the Article both supports and critiques textualist Justices’ approach to statutory precedents. On the one hand, it argues that a relaxed form of stare decisis for implementation test precedents makes sense for many reasons, as long as special deference is given to implementation tests that Congress has expressly endorsed. At the same time, it rejects textualists’ attempts to overrule non-implementation test precedents based on simple disagreement with the original interpretation.
Can’t wait to read this!