In this year’s Scalia Lecture at Harvard Law School, Judge Rachel Kovner asked: “Are We All Textualists Now?” Of course, she was riffing off Justice Kagan’s quip at the 2015 Scalia Lecture. But ten years later, Judge Kovner wondered if Justice Kagan’s observation still rings true.
During her thoughtful remarks, she observed that, today, the Supreme Court seems comfortable and even eager to reference “context” when interpreting text. And while the precise contours of “context” remain a bit ill-defined, Judge Kovner persuasively argued that what the Court calls “context” can look an awful lot like purpose in all but name. She cited Pulsifer v. United States as one example of this phenomenon.
But we’ve been taught that purpose — or rather, purposivism — is the reputed foe of textualism. In fact, Justice Scalia’s brand of textualism, or so the story goes, was originally framed as an alternative to the purposivist approach once dominant in law schools and courts around the country. How, then, Judge Kovner asked, can we all still be textualists if textualism today includes the use of seemingly purposivist tools like “context?”
Put another way: The Judge asked us to consider whether the Court’s current use of “context” — and similar tools — is consistent with textualism.
That sort of question is familiar. It takes an interpretive tool and asks whether its use is consistent with an interpretive methodology. But what do we really mean when we ask if X tool is consistent with Y method? And, more importantly, is this framing the best way to think about the relationship between interpretive tools and methodologies?
This blog post proposes a different way to frame this type of question: When we ask if X tool is consistent with Y method, what we are really asking is whether X tool does a good job of achieving what Y method seeks to achieve. That’s an empirical question. It can’t be answered ex ante. Maybe X is good at doing that. Or maybe it’s bad. But either way, we need evidence — we need to see if X can actually get us to Y. Importantly, that means that, in theory, any X can be “consistent” with a given Y, so long as X does a good job at the thing Y seeks to do.
Let’s break that down.
Say that we define textualism as an interpretive approach that seeks to uncover the “plain meaning” of enacted statutes. And we define “the plain meaning of a statute [as] the set of ideas that the statute conveyed or made accessible to those governed by the statute at the time when the statute was enacted and promulgated.” Easy enough so far. When a textualist looks at a particular law, they should — operating under these definitions — be trying to figure out what the plain meaning of the words on the page really is.
How does a textualist do that? Well, they often consult interpretive tools. They look, for instance, at dictionaries, contemporaneous writings, or even the corpus juris itself. Textualists enlist these tools as they try to uncover what textualism demands: the plain meaning of the words on the page.
But what are good tools and what are bad tools? One can phrase that question as whether particular tools are “consistent” with textualism. But that phrasing almost suggests the question can be answered ex ante. In other words, it suggests that I could hand someone a stack of dictionaries and a pile of legislative history, and — without looking at either source and before actually trying to use them to discern plain meaning — someone could say: “Yes! The use of dictionaries is consistent with textualism.” Or they could emphatically declare: “Nope! Legislative history is not consistent with textualism.”
On some level, this ex ante approach to approving or disapproving of certain tools makes sense. It reflects our intuitions about how good we think a particular interpretive device will be at uncovering what we’re looking for. Dictionaries just seem like they’d be better at telling us the plain meaning of words. By contrast, for the reasons many have outlined, legislative history seems like it might not do as good of a job.
But determining if a textualist can permissibly use X tool cannot reliably be done ex ante. We have to ask ourselves whether the tool does a good job — as an empirical matter — of doing what we want textualist tools to do.
That means that any tool enlisted by a textualist can in, theory, be “consistent” with textualism — even legislative history (gasp!). For instance, perhaps, I could show that using legislative history helps me uncover the plain meaning of the words because it helps me see how reasonable speakers at that time used particular terms. Legislative history would, at least in that respect, be “consistent” with textualism because it would help me do what textualists set out to do.
The same can be said for the Court’s recent invocations of “context.” (To put my cards on the table, I agree with Professor Lawrence Solum that to “recover the full and actual meanings conveyed by statutory texts, [one] must take context . . . into account.”)
We can’t say ex ante whether the Court’s use of “context” is consistent with textualism or not. We can’t just take a look at the tool and say for certain: “Yes, this is kosher for textualists to use.” Instead, we have to see the tool in action and ask the empirical question: “Does the Court’s invocation of ‘context’ help the Justices discern the plain meaning of text?” If the answer is yes, then “context” is fair game for textualists. If the answer is no, we should kick “context” off the team.
The flip side of this discussion should be clear, too: Because we can’t say ex ante that a tool is per se consistent with textualism, no tool can continue to be consistent with textualism if or when it ceases to be useful for textualist purposes.
Let me explain. Imagine that looking at legislative history only helps me divine what an individual bill sponsor thought about a bill; it doesn’t otherwise help me uncover the plain meaning of the text. If that’s the case, legislative history is not doing a good job of achieving my textualist goal. As an empirical matter, it has ceased to be useful. So, its use is no longer “consistent” with textualism. That means, then, that a tool — like purpose or legislative history — can be consistent with textualism in some instances but not in others. It all depends on whether it does, in a particular case, a good job of doing textualist things.
All of this can also be said for originalism and its tools. Is the “history and tradition” test consistent with originalism? Well, that depends. Does that tool do a good job of uncovering original meaning? Justice Thomas thinks so. But Justice Barrett’s view is more complicated. As I have argued elsewhere, she thinks that “in some cases, a ‘history and tradition’ approach helps shed light on the original meaning of the Constitution. . . . But, in other cases, . . . other interpretive or adjudicative tools — like looking at purpose — are better fits.” That’s all to say that some tools — like the “history or tradition” test or “purpose” — can help judges discern original meaning. As an empirical matter, that makes them useful devices. When that’s the case, those tools are “consistent” with originalism.
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We can’t say whether any interpretive tool is “consistent” with textualism ex ante. We have to see that tool in action. If, as an empirical matter, that tool helps interpreters uncover the plain meaning of text, its use is consistent with textualism. But if it doesn’t, then you have to kick it to the curb. This means that any tool — legislative history, purpose, or context — can be used consistent with textualism. If a textualist invokes one of these tools, we should ask ourselves: “Is that tool doing a good job at shedding light on plain meaning?” That’s an empirical question. And if the answer to that empirical question is “yes,” we can use those tools and still call ourselves textualists. So, if “context” does aid the Court in uncovering plain meaning, then we are all still textualists now.
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