In 1920, seventeen-year-old Salvatore Eugene Scalia arrived in the United States from Italy with his family.1 He picked up English quickly and decided to pursue a career in academia studying Romance languages. He got married, earned a master’s degree, and had a son, the future Supreme Court Justice Antonin Scalia.2 Salvatore3 earned his Ph.D. in 1950 and became a professor at Brooklyn College, where he taught Italian, French, and Spanish.4 He was known in his field for his scholarship on and translations of Italian poets,5 but he also had a lasting impact on legal theory that has gone largely unacknowledged. Salvatore was a conduit between literary criticism and statutory interpretation, two fields that rarely intersect. Salvatore influenced his son’s approach to reading a text, and his son in turn influenced a generation of judges and scholars in developing and refining textualism.
Salvatore was affected by the New Critics, and theirs was the set of critical beliefs that he seems to have imparted to his son.6 New Criticism was the dominant American approach to literary criticism in the mid-twentieth century, and its principles were well established over the de-cades in which it was theorized and taught in universities.7 First, its adherents advocated for the method of close reading, by which they meant focusing on “‘the work itself’ and ‘literature qua literature.’”8 Second, they emphasized formalism over social context and other external factors in pursuit of objective, scientific analysis.9 Finally, the kind of close reading that the New Critics espoused largely did away with authorial intention as a relevant area of inquiry.10 As this Note will demonstrate, these tenets of New Criticism are reflected in many of Justice Scalia’s core textualist convictions — notably his close attention to statutory text, his certainty in reaching definitive outcomes in interpretive questions, and his rejection of congressional intent as a relevant factor in statutory interpretation.
This connection between New Criticism and textualism would be nothing more than an interesting footnote in legal history were it not for the very different trajectories of the two movements. New Criticism began falling out of fashion in the late 1960s, as poststructuralism and postmodernism swept into the academy.11 In 1967, Roland Barthes published his landmark essay The Death of the Author, which embraced the multiplicity of viewpoints resulting from dynamic interactions with other texts and the readers themselves.12 On this view, the text is not a closed entity that can be reduced to the words on the page; rather, “[t]he Text is plural” and draws meaning from disparate other sources.13 Barthes and other poststructuralists14 also urged considerations of social and political context when considering a text, eschewing the narrower kinds of close reading that shut out external forces. While these theorists were not always directly responsive to New Criticism, their ideas can be read in concert: where the New Critics prized certainty and objectivity, the poststructuralists celebrated subjectivity and variability. These are profoundly different ways of looking at the same fundamental insight: that authorial intent is not a valid way to interpret a text.
Meanwhile, textualism — particularly Justice Scalia’s version of textualism — remains the dominant method of statutory interpretation among the federal judiciary.15 Justice Kagan remarked in 2015 that “we’re all textualists now,”16 and the three most recent appointees to the Supreme Court are “eager to follow and expand [Scalia’s] program.”17 But textualism’s early connection to New Criticism has been underexplored, and as a result the legal theory has not grappled with the poststructuralist response.
This Note examines both the similarities between textualism and New Criticism and one of the consequences of that similarity — namely, the relevance of poststructuralism. Part I discusses New Critical theory, both on its own terms and as it influenced and appeared in Salvatore’s publications on Italian poetry. It then addresses Justice Scalia’s writings on statutory interpretation to show the ideas shared by the two movements. Part II considers the poststructuralist response to New Criticism, noting the interrelated critiques revolving around authorial intent and the practice of close reading as a lens through which to analyze textualism. Poststructuralism cannot offer a model for statutory interpretation because it embraces indeterminacy and subjectivity, in stark contrast to the consistency needed in reading statutes. However, its theoretical insights can be used to parse textualist opinions, which section II.B demonstrates by examining two recent opinions from the Roberts Court, Bostock v. Clayton County18 and Niz-Chavez v. Garland.19 In so doing, this Note shows how textualism fails to grapple with the consequences of its interpretive approach and leads to the very subjectivity that it strives to avoid.
I. From Literary Theory to Statutory Interpretation
This Part traces the connections between the New Critical school of thought and Justice Scalia’s textualist philosophy. It first provides an overview of the New Critics’ central arguments concerning authorship and the correct way to read a text, then turns to the impact of these ideas on legal scholarship through Scalia’s father. Finally, it addresses Scalia’s scholarly writings and judicial opinions to show the echoes of New Criticism present in his work.
A. The New Critics
The New Critics are perhaps best known for championing the use of close reading, the practice of closely studying the details of a text, as the correct way to understand and engage with that text. Their most direct influences from England advocated for paying close attention to the words on the page,20 a practice that the New Critics “intensified as a fetish.”21 The technique was highly teachable22 and focused on formally analyzing the words, syntax, metaphors, and other aspects of the text.23 Meaning emerged from the text only after this close consideration,24 so the conclusions of the New Critics tended to be limited in scope.25
Close reading called for “attend[ing] to the ways in which a text produces value in relation to itself, as a more or less autonomous object that can be detached from its author and from the circumstances of its production.”26 Following this method, the reader was “not to say anything that was not derived from the text they were considering,” nor “make any statements that . . . could not [be] support[ed] by a specific use of language that actually occurred in the text.”27 John Crowe Ransom, a leading figure of New Criticism,28 specifically identified areas of study to be excluded from the realm of what he considered to be proper criticism. Notably on his list were “[p]ersonal registrations,” meaning an individual reader’s experience of the text,29 and “historical studies,” a category that included the author’s biography and “autobiographical evidences” in the text.30
As their focus on close reading suggests, the New Critics advocated for an empirical, formalist approach to literary criticism. From positivist philosophy came the idea that linguistic analysis meant that “all genuine questions were answerable.”31 Close reading was meant to bring objective interpretation and exacting formalist precision to the study of poetry, thus leaving the realm of the subjective.32 The New Critics were interested in the experiments of I.A. Richards, an English critic who had his students read poems without their titles and authors,33 but many rejected this psychological approach as overly focused on the reader’s experience.34 Instead, Ransom argued that “[c]riticism must become more scientific, or precise and systematic,”35 embracing the idea that science was the “dominant form of social rationality.”36
Another important piece of the New Critics’ philosophy of close reading was downplaying the importance of the author of a text. In 1919, T.S. Eliot argued for a “diver[sion of] interest from the poet to the poetry” and a recognition that “[t]he emotion of art is impersonal.”37 The New Critics picked up this idea and ran with it. In a landmark 1946 essay, W.K. Wimsatt and M.C. Beardsley made the case that critical consideration of authorial intent was a fallacy.38 They argue:
The poem is not the critic’s own and not the author’s (it is detached from the author at birth and goes about the world beyond his power to intend about it or control it). The poem belongs to the public . . . . What is said about the poem is subject to the same scrutiny as any statement in linguistics or in the general science of psychology or morals.39
Their method of close reading thus facilitated a focus on the text alone,
“without befuddling the issue with any appeals to authorial intention.”40 Critical engagement was boiled down to the essential elements: the words on the page and their reader.
Though the specifics of the methodological approach varied over time and by critic, New Criticism’s core tenets remained stable for the decades in which it dominated the American academy. It involved “[t]he exclusive focus on the formal integration of the object, the extreme empiricism of method, . . . the isolation of the resulting studies from their historical context, [and] their negligible comparative value owing to the stress on internal empirical criteria.”41 New Criticism thus consisted of a technique and a set of theoretical commitments that came with said technique. Close reading brought with it a focus on empirics, a belief in scientific rationality, an understanding of literature as a solvable problem of linguistics, and a disregard of authorial intention.
B. Salvatore Scalia
As an academic in mid-twentieth-century America, Salvatore would have been trained in the close reading methodology of the New Critics. He published on two Italian writers, Giosuè Carducci42 and Luigi Capuana.43 These volumes reveal the degree to which he agreed with and argued for some of the central ideas of the New Critics, which would later find similar expression in his son’s work.
Salvatore embraced close reading and its stress on the naked text above all else, echoing the New Critical views in vogue at the time. He rejected readings of poetry that relied on elements that were “external or foreign” to the text itself, arguing that a critic should find fault with a poem only on the basis of its “congenital flaws and failings.”44 He insisted that the work must be considered as a whole, explaining: “A poem is a poem, not this plus that . . . . Words and metres . . . form an integral part of [the] poem, just as body and soul are an integral part of man’s individuality and personality.”45 Like the New Critics who analyzed poetry by closely attending to the words on the page, Salvatore focused on the lines of poetry themselves and urged “direct communion with [the] page.”46
The New Critics’ attitudes toward objectivity, empiricism, and authorship are similarly reflected in Salvatore’s work. While writing about the task of translating an Italian poet, Salvatore revealed an ambivalence about the degree to which translation could be successful.47 Echoing Ransom’s search for scientific precision, Salvatore believed that “[l]iteralness . . . is essential.”48 As such, he “preferr[ed] strict textual fidelity over loose interpretive ‘translation’”49 and criticized other translators for deviating from the original text.50 Salvatore noted the importance of literalness in “prevent[ing] the translator from yielding to the temptation of following the line of least resistance,”51 suggesting his concern with objective standards that would not change based on the identity of the intermediary. In presenting his own objective, literal translation, Salvatore considered authorial biography but not intent,52 in general accordance with the New Critical approach.53 Salvatore’s approach to poetry thus mirrored the New Critical approach that was dominating the American academy at the time.
C. Justice Scalia’s Textualism
Salvatore’s approach to translation and literary criticism left an enduring impact on his son’s ideas about text and interpretation. Although Justice Scalia discussed the influence of his mother more than his father — describing her as “doting” and him as “stern”54 — Justice Scalia’s biographers have recognized the subtler ways that Salvatore shaped his scholarly instincts. Professor Bruce Murphy writes that Scalia was “imbued with the conservative, text-oriented Catholicism of his father”55 and considered following in his footsteps to be a college professor.56 Similarly, journalist Joan Biskupic remarks that Salvatore “taught Antonin to value the words of a text and appreciate cast-iron rules”57 and set high expectations for his son.58 Professor George Kannar, when analyzing Scalia’s methodology on the bench, notes that Salvatore “almost surely brought home the message he so vigorously asserted in his own ‘texts.’”59 Kannar pictures the Scalia family “dinner table forum,” at which the “distinction between vague notions of authorial ‘intent’ and the poet’s . . . precise ‘words’ must have been drawn especially sharply for Antonin Scalia; and the fundamental importance of preferring strict textual fidelity over loose interpretive ‘translation’ must have been strongly emphasized.”60 As Murphy, Biskupic, and Kannar have all observed, the evidence of Salvatore’s influence can be found in Justice Scalia’s writings, especially those on textualist theories of statutory interpretation. When discussing the meaning of words and the right ways to read a text, Scalia sounds remarkably similar to his father — and, by extension, to the New Critics.
1. Close Reading. — The first and most fundamental similarity is the technique of close reading. Justice Scalia’s articulation of textualism61 is built on a foundation of close reading; it begins and often ends with nothing more than the naked text.62 The primary tenet of his approach to statutory interpretation is that “[t]he text is the law, and it is the text that must be observed.”63 Scalia’s textualism is a “rigorously text-based methodology” that prioritizes and deeply considers the words of the statute from many angles.64 This approach recalls the New Critical practice of attending to a text as an “autonomous object”65 and Salvatore’s insistence on the poem qua poem.66 It plays out in legal opinions where Scalia starts by honing in on the particular word choice or syntax of a statute and crafting text-based arguments to support his reading. Regardless of the nature of the evidence Scalia considers,67 the form of his textualist opinions was an extended exercises in close readings.
Paradigmatic of this approach is Scalia’s opinion in MCI Telecommunications Corp. v. American Telephone & Telegraph Co.68 At issue in the case was whether the FCC could permissibly interpret the statutory authority to “modify” a particular tariff requirement to mean the authority to make such tariff filing optional for certain parties.69 Writing for the majority, Justice Scalia looked to multiple dictionaries that defined “modify” as some kind of moderate change70 and rejected one that offered substantial change as an acceptable definition.71 The ease with which he dismissed the contrary reading came from his close attention to the text and his own linguistic intuition, as he wrote off other uses of “modify” as irony or political spin.72 After this intense focus on the word,73 he was comfortable concluding that the statute had a clear meaning based on the text alone.74 In response, Justice Stevens accused the majority opinion of “rigid literalism,”75 a charge that Scalia sought to deny in other writings76 — but one that recalled his father’s approach to translation.77
A key aspect of Scalia’s textualism that is apparent in MCI and other cases is his certainty in his intuition about the meaning and usage of language. Like Salvatore “directly commun[ing] with [the] page,”78 Scalia often considered his own use of the words appearing in the statute and relied on those instincts as additional grounds of support. In Smith v. United States,79 where the majority held that “using” a firearm during a narcotics sale encompassed trading a gun for drugs,80 Scalia dissented based on the ordinary meaning of the phrase “to use a firearm.”81 His argument opened with a series of hypotheticals, discussing ways in which the so-called ordinary person would use the word and seemingly anticipating the reader’s agreement with his conclusions.82 He deployed a similar rhetorical strategy in Moskal v. United States,83 presenting the relevant statutory phrase in other contexts84 in order to advance “what [he] consider[ed] to be its ordinary meaning.”85 In both cases, he foregrounded his own interaction with the text in order to build up the basis for his legal reasoning, echoing the New Critics’ practice.
2. Empiricism and Formalism. — With Scalia’s technique of close reading came the second similarity to Salvatore and the New Critics: a claim to near-scientific empiricism. Scalia referred to statutory interpretation as a “science”86 and criticized “piecemeal” approaches to studying it that did not “treat the subject in a systematic and comprehensive fashion.”87 In his later work, Reading Law, he sought to do just that; Scalia and his coauthor Professor Bryan Garner purported to be the voice of authority for the correct way to read a statute.88 The empiricism of his method brought with it an attention to formalism, a label he embraced when it came to textualist interpretation. He writes:
Of all the criticisms leveled against textualism, the most mindless is that it is “formalistic.” The answer to that is, of course it’s formalistic! The rule of law is about form. . . . Long live formalism. It is what makes a government a government of laws and not of men.89
His goal as a textualist was ultimately to find “a uniform, objective answer to the question whether a statute, on balance, more reasonably means one thing than another”90 — a goal that presupposes, as the New Critics did,91 that uniformity and objectivity are possible to achieve in linguistic interpretation.
The kinds of evidence that Scalia invoked further demonstrate his focus on empirical analysis and belief in right answers. He often turned to linguistic canons of construction, which operate as rational explanations of the way that language functions.92 The chief advantage of the canons for the “science” of statutory interpretation is that they put into formulas what might otherwise be nonscientific intuition.93 Indeed, Scalia described canons like noscitur a sociis, the principle that a word gains contextual meaning from those surrounding it, as “commonsensical.”94 Although the linguistic canons were famously criticized as malleable by Professor Karl Llewellyn,95 Scalia sought to apply them according to certain rules and principles.96 Reading Law, the ultimate guide to the textualist’s proper application of canons, contains guidelines for each “approved” canon, as well as examples of variations or unusual patterns.97 Another kind of empirical evidence that Scalia often invoked was dictionary definitions, such as in MCI and other cases.98 Like Ransom arguing for precision and scientific analysis, Scalia relied on the dictionary to show objective meaning — data in its most neutral form.99 A poem is a poem, not anything else.
3. Authorial Intent. — The third and final parallel between Justice Scalia’s textualism and New Criticism is the rejection of authorial intent as a valid mode of reading a text. For the New Critics and Salvatore, this meant biography was verboten, intention was a fallacy, and translations should be literal. For Scalia, this meant a deep skepticism of legislative history.
Justice Scalia had a number of critiques of legislative history as it had been operationalized in statutory interpretation decisions. Most of the issues in statutory interpretation cases, he argued, are minor points that legislators likely did not consider, so legislative history cannot resolve these disputes.100 He was concerned about the ease with which legislators and lobbyists could manipulate the record and “portray a phony purpose.”101 Scalia also acknowledged the potential for judges to distort the record, noting the tendency to “look over the heads of the crowd and pick out your friends.”102
But Scalia had a more fundamental problem with the use of legislative history as indicia of congressional purpose.103 Intentions do not go through the constitutional requirements of bicameralism and presentment; the text alone is the law.104 Therefore, even if legislative history could provide insight into the purpose of a statute, such insight would be fundamentally illegitimate.105 He explained: “I don’t care what the legislators intended. I care what the fair meaning of [a] word is.”106 Scalia’s skepticism of legislative history was closely tied to his commitment to close reading, which he believed would produce the “objective indication of the words.”107 This perspective, taken to its logical conclusion, suggests that even a perfectly accurate statement of unified congressional intent is simply not relevant to the judge interpreting the statute,108 in the same way that the New Critics argued that asking a poet for the meaning of a poem is not relevant to the literary critic.109
These core principles of Scalia’s textualism — an attention to close reading, a belief in empirical and formalist analysis, and a disregard for authorial intent — have much in common with the work of Salvatore and the New Critics, and they continue to reverberate in the field of statutory interpretation. These three ideas have laid the groundwork for the many textualists and textualisms110 currently active on the bench. But, as the next Part will discuss, Scalia’s textualism is a dangerous foundation on which to build.
II. Textualism in a Post–New Critical World
In 1984, two years before Scalia was appointed to the Supreme Court, the Southern California Law Review held a symposium on interpretive methodologies and principles from other disciplines.111 Professor Mark Poster, a historian, spoke about “[t]he phenomenon of poststructuralism in France in recent years,” sharing his belief that the movement “promised to transform drastically the theory and method of textual interpretation.”112 It certainly achieved that vision in the literary world, as poststructuralism is widely acknowledged today to have unseated New Criticism from its dominant place in the academy. However, poststructuralism failed to make inroads in legal scholarship on statutory interpretation. To some extent, this discrepancy makes sense: poststructuralism embraces ambiguity and multiplicity of meaning, which is not a useful frame in which to conduct legal interpretation given the need for stable and reliable results. But in its absence, textualism — with its similarities to New Criticism — flourished without ever confronting the poststructuralist critique.
This Part explains the aspects of the poststructuralist critiques of New Criticism that are most relevant for the study of textualism. First, the poststructuralist viewpoint rejects the supposed empiricism and objectivity of the New Critics; it instead acknowledges the subjectivity of textual meaning. Second, poststructuralism problematizes close reading by pointing to its decontextualization and supposed lack of politics. After discussing these critiques, this Part applies them to recent textualist decisions from the Supreme Court.
A. The Poststructuralist Critique of New Criticism
While poststructuralism was not a single unified school of thought and did not always directly respond to New Criticism, its insights contributed to the decline of the latter movement’s popularity and helpfully examined some of its central theoretical flaws.
1. The Death of the Author. — In 1968, Roland Barthes published his manifesto The Death of the Author.113 He began from the same assumption as the one held by many of the New Critics: authorial intent should not be used to interpret a text.114 But where the New Critics contended that freedom from consideration of authorial intent allows the critic to read a text objectively, authoritatively, and scientifically, Barthes rejected empirics115 and embraced a multiplicity of viewpoints.116 This perspective is embodied in the concept of intertextuality,117 the idea that a text should be understood not as a self-contained entity, but as a dynamic intersection point of other writings.118 The text is shaped by its encounters with other texts and contexts, then located in the reader. Barthes explains:
[A] text is made of multiple writings, drawn from many cultures and entering into mutual relations of dialogue, parody, contestation, but there is one place where this multiplicity is focused and that place is the reader, not, as was hitherto said, the author. The reader is the space on which all the quotations that make up a writing are inscribed without any of them being lost; a text’s unity lies not in its origin but in its destination. . . . [T]he birth of the reader must be at the cost of the death of the Author.119
This approach mirrored the New Critics’ philosophy in that it rejected the oppressive voice of the author,120 but it went on to reject the very idea of a “single . . . meaning.”121 By focusing intensely on the concept of the author,122 Barthes identified a subjectivity123 that the New Critics had missed.
Other poststructuralists similarly looked hard at authorship and intent, undermining the New Critical claim to objective meaning. Michel Foucault interrogated the authorship function124 and argued for considering the modes of discourse circulating around a text rather than the identity of the author.125 Jacques Derrida’s writings on deconstruction challenged the possibility of a word or symbol having a stable meaning,126 recognizing the importance of minimizing the controlling force of intention.127 Derrida also wrote about the phenomenon of iterability, “the propensity of words to wander away from their original context and to garner new and unforeseeable meanings in alien habitations,”128 which stands in sharp contrast to the New Critical assumptions of the poem as an “unbroken, monadic and self-sufficient ‘entity.’”129
This poststructuralist point of view thus responds to the New Critics’ claims of objectivity and determinate meaning by heightening their premise (dead, not downplayed, authorial intent) and following it to a discursive, intertextual endpoint. Without the anchoring of authorial intent, the meaning of the text opens up130 and the relevant perspective switches from author to reader. At the same time, the poststructuralists stress that there is a multiplicity of other texts and sources acting on the text to be interpreted, thereby destabilizing the idea of a common or ordinary meaning. Barthes, Foucault, and Derrida celebrate this freedom from the monolithic author and look to what can emerge in its wake — although, as commentators have recognized, this approach is not “a particularly effective tool for analyzing literary texts” given its celebration of ambiguity.131
This perspective is even more troubling when applied to the project of statutory interpretation. The textualist judge, for a number of sensible reasons,132 does not decide the meaning of a statute based on the intent of its drafters. But silencing the legislature (author) creates space for the judge (reader) to bring their own subjective viewpoint to bear on the text. The intertextual forces acting on the text further impact the meaning and disrupt the possibility of an ordinary statutory meaning. Without an awareness of the relationship between death of the author and interpretive subjectivity, the judge risks assuming that they are accessing an objectivity that is simply not there.
2. The Politics of Close Reading. — A related critique of New Criticism that emerged with poststructuralism had to do with its politics. Poststructuralism has long been associated with leftist theory,133 while New Criticism — like the textualism that emerged with Justice Scalia — has ties to the political right. New Criticism originated with Ransom in the prewar South, and the earliest political expressions of the movement’s core figures were decidedly conservative.134 In a 1930 manifesto of sorts, the early New Critics defended a traditional Southern agrarian form of life and the rights and privileges due to them as “white male Christian property owners brought up as the inheritors of a certain concept of culture.”135 Although many New Critics moved away from this position over time,136 these political roots are evident in their practice of close reading and came under heightened scrutiny in the late twentieth century.137
As poststructuralism unseated New Criticism from its dominant position in the American academy, it cast an increasingly skeptical eye on the practice of stripping historical, social, and political context from texts.138 The close reading conducted by the New Critics was found to exhibit a pronounced ahistoricism, an attitude toward literature which suggested that “[t]here is no history, only a continuum, composed of the great works of literature.”139 Professor Jane Gallop explains that, when poststructuralism emerged in the United States, this ahistoricism was “persuasively linked to sexism, racism, and elitism.”140 Historical decontextualization flattened diverse points of view, which in turn allowed a perpetuation of the straight white male canon under the guise of timeless aesthetic values.141 The veneer of neutrality found in close reading was therefore inextricably linked to New Criticism’s conservative political roots.142 Indeed, the values that the New Critics espoused reflected an “index of [their] own cultural context rather than an enduring set of principles.”143
Poststructuralism responded to the politics of New Criticism by arguing for a different kind of close reading. This alternative view still engages deeply with the words on the page, but rejects ahistoricism in favor of close attention to competing social forces.144 It is also transparent about its political aims, unlike the submerged politics of New Criticism. Interpretive methodologies are not politically neutral; questions of meaning and truth145 are bound up in particular worldviews and larger goals.
The same ought to be recognized in the practice of statutory interpretation, a field rife with politics146 but constantly professing neutrality.147 Although judges aim for political neutrality when reading a statute and may believe themselves to be free of personal biases, such a viewpoint risks obscuring the political forces that are bound up in many statutory interpretation cases. As with the concerns about authorial intention discussed above, poststructuralism demonstrates that a frank acknowledgement of the politics at play is a crucial first step in rejecting a methodology of a historicized close reading.
B. Textualism Through the Lens of Poststructuralism
These two related critiques of New Criticism provide a novel lens with which to understand the theoretical problems of textualism as practiced today by Justice Scalia’s successors. Poststructuralism has been influential for Critical Legal Studies (CLS),148 a movement that seeks to highlight the subjective politics inherent in the supposedly objective rule of law.149 However, it has generally not been considered in the context of statutory interpretation. This absence may be due to the gulf between academia and the courtroom: broadly speaking, CLS is the domain of professors engaging in theory, while rules about statutory interpretation are typically developed by judges drawing on their practical experience. And because of the practical nature of statutory interpretation, poststructuralism cannot (and should not) offer a guidepost to reading a statute. Nevertheless, it is crucial to bring the poststructural critique of New Criticism into dialogue with the field of statutory interpretation. The poststructuralist lens reveals shortcomings of textualism as an interpretive strategy, which can be seen in recent textualist opinions from the Roberts Court.
In Niz-Chavez v. Garland, the Court split over the best reading of a one-letter word in an immigration statute. The statute at issue requires the government to issue to a nonpermanent resident alien “a notice to appear” that contains certain prescribed information about the individual’s removal hearing, including the place and time of that hearing.150 The petitioner received the required information by installment, sent in two documents two months apart; the question before the Court was thus whether these two documents could constitute “a notice to appear” when taken together.151 Justice Gorsuch, writing for the majority, approached the question by conducting an exacting close reading: he honed in on the ordinary meaning of the indefinite article “a”152 and considered several examples of how the word is typically used in everyday speech.153 He concluded that “a” means “one” in this particular context,154 meaning that the government’s delivery by installment constituted insufficient notice.155 Justice Kavanaugh in dissent criticized the majority’s parsing of the statute as being overly literal,156 citing Justice Scalia’s directive that a “good textualist is not a literalist.”157 He offered his own examples to argue that “a” can refer to a thing delivered by installment158 and concluded based on the text that the best reading of “a” in this statute should include the government’s notice in two parts.159
The majority and the dissent both emphasized the importance of context to understanding the meaning of “a” in the statute.160 They turned to analogies, trying the word “a” in a variety of linguistic contexts and intuiting what an ordinary speaker of English would say. They considered the word within its statutory context and without. And yet the two readers, employing a very similar methodology, arrived at two different conclusions — despite textualism’s claim that ordinary meaning is ascertainable to some degree of certainty.161
Poststructuralism explains the divide between the two opinions: two readers experienced the same word differently, due to the discursive and variable external forces operating on the text. There is not a stable meaning that the reader can access without bringing their own subjective experiences to bear on the interpretation. This is a logical consequence of downplaying or rejecting authorial intent as an interpretive guidepost, but one which textualism does not fully consider. As a result, the two readers speak past each other, each viewing the text from his own perspective and assuming a universality that does not exist.
Another kind of problem emerges with the dueling textualist opinions of Bostock v. Clayton County, which addressed whether Title VII’s prohibition on discrimination “because of such individual’s . . . sex”162 encompassed discrimination perpetuated against gay and transgender individuals.163 Justice Gorsuch, writing for the majority, held that it does.164 His approach was highly formalistic, studying the meaning of each operative word in turn165 and concluding in near tautology: “An employer violates Title VII when it intentionally fires an individual employee based in part on sex.”166 (Recall Salvatore and Antonin Scalia’s fondness for this construction.167) Sexual orientation and gender identity count as sex for Justice Gorsuch because of the comparative method: if a man attracted to men is treated differently from a woman attracted to men, or a trans woman assigned male at birth is treated differently from a cis woman assigned female at birth, the difference is attributable in part to their sex.168 Professor Tara Leigh Grove describes this reasoning as “almost algorithmic” in its formal treatment of language.169 Justice Gorsuch mentions precedential, purposivist, and policy considerations only to fend off counterarguments and add further support to the already settled conclusion.170 The text alone — stubbornly ahistorical and isolated from contextual external forces that can shape the meaning of a word — is dispositive.
Meanwhile, Justices Alito and Kavanaugh both argued in dissent for a different reading of the operative word “sex.”171 Justice Alito pushed back on Justice Gorsuch’s assertion that the text was not ambiguous172 and considered relevant to the definition of “sex” not only dictionary definitions but also the ordinary person’s understanding of the term in 1964.173 Justice Kavanaugh agreed, arguing that statutory interpretation ought to involve ordinary, not literal, meaning.174 Grove labels their approach “flexible textualism”: “[T]his version of textualism authorizes interpreters to make sense of the statutory language by looking at social and policy context, normative values, and the practical consequences of a decision.”175 In other words, the dissenters are reacting to Justice Gorsuch’s textualism almost exactly like the poststructuralists reacting to the New Critics, criticizing the decontextualized close reading and accusing it of lacking necessary nuance.
However, the context that Justices Alito and Kavanaugh bring to bear on the statutory language still falls prey to textualist shortcomings. The interpretive community that they consider to be relevant, the supposedly neutral “ordinary Americans” of 1964,176 reflects their own point of view. Like the New Critics who espoused universal values that in fact mirrored their particular circumstances, biases, and privileges,177 Justices Alito and Kavanaugh’s conception of the ordinary person is really a blank slate on which they project a particular type of person. That person is probably white, male, cisgender, straight, Christian — someone who, in short, looks a lot like them. There may have been one particular understanding of “sex” in 1964 for that subgroup of the population, but a diverse society will produce diverse understandings. As Justice Gorsuch notes, shortly after Title VII’s enactment, gay and transgender employees began filing complaints of workplace discrimination, indicating that they understood themselves to be discriminated against on the basis of sex.178 Why are they not part of the relevant community? Poststructuralism, in its embrace of a multiplicity of social forces, might call for holding both of these communities as relevant, working through the contradictions to gain a more holistic view of what it means to discriminate because of sex. Bringing in one-sided context does nothing more than muddy the interpretive waters.
Textualism falls short in both Niz-Chavez and Bostock because it fails to interrogate the consequences of downplaying authorial intent and the corresponding rise of the judge’s ability to read a text in different ways. The death of the author brings with it the birth of the reader, an unacceptably subjective outcome for statutory interpretation. Moreover, even when textualists like Justices Alito and Kavanaugh look to external context, their reasoning fails to consider the full social and political picture. Textualism without an awareness of the poststructuralist critique thus falls prey to the same pitfalls as New Criticism, focusing on the words on the page while shutting out the rest of the world.
Conclusion
Interpretation lies at the heart of legal debate. Statutes creating rights and duties are penned by legislators, then enforced by judges attempting to resolve the complexities and inherent ambiguities found in written language. The dominant interpretive methodology today, an outgrowth of Justice Scalia’s textualism, seeks to resolve ambiguity in the search for ordinary meaning, a supposedly neutral way to read a statute. It is perhaps unsurprising, given this aim, that textualism has so much in common with the New Critics and Salvatore Scalia, who also strove for empiricism by focusing on nothing more than the words on the page. But as poststructuralism reveals, this approach fails to account for intertextuality and embraces an ahistoricized perspective in its close reading. More broadly, the poststructuralist lens applied to textualism shows the relevance of literary theory in the field of statutory interpretation. While literary criticism does not provide a guidepost for judges, it can illuminate salient aspects of language — including the interpretive pitfalls with which both fields have grappled.