Statutory Interpretation in The Roberts Supreme Court: The New Textualism

Statutes have come to dominate the American legal landscape, and statutory interpretation has correspondingly acquired tremendous importance. Yet many law schools do not have a class specifically devoted to statutory interpretation as opposed to substantive areas of law. This class will focus on the so-called “new textualism," which has become the most influential method of statutory interpretation. (The corresponding method of constitutional interpretation, under the originalist label, is also prominent. And our studies will be highly relevant to constitutional interpretation, though it will not be our explicit focus.)

Endorsement of textualism is surprisingly widespread on the current Supreme Court. Indeed, Justice Kagan has been widely quoted as saying “we are all textualists now.” The new textualism, closely associated with Justice Scalia, rejects traditional plain meaning textualism in favor of “public meaning," which is supposed to take into account how a reasonable reader would understand a provision in context.

The ascendance of the new textualism raises a host of questions. What exactly is the new textualist methodology? Do the new textualists on the Supreme Court consistently adhere to this methodology? Given what linguistics and philosophy of language tell us about meaning and communication, does the new textualism’s rejection of legislative intentions and of literalism leave textualism with a coherent methodology? What is the goal of textualist methodology? For example, is it to identify the law? Is the methodology suited to that goal? What are the arguments for textualism? What are its strongest competitors? How should one choose between competing methods of statutory interpretation?

In this class, we will approach these questions through several kinds of materials: textualist opinions of the Supreme Court; scholarly literature on textualism and statutory interpretation more generally; basic work on language and communication; and statutory interpretation exercises. We will explore what methodology is used in various recent statutory interpretation decisions of the Roberts Supreme Court. We will ask whether the methodology is consistent across recent Supreme Court decisions. Informed by some basic insights about language and communication, we will explore whether the new textualist methodology is coherent. We will consider competing methods of statutory interpretation and the arguments that judges and theorists offer for and against textualism. We will consider what statutory interpretation is for and, in light of that goal or goals, how to evaluate competing methods. Students will do statutory interpretation exercises and short papers or quizzes.  Students will engage in exercises in which they take the role of judges deciding difficult statutory interpretation questions. No final exam.