Harvard Law Review Harvard Law Review Harvard Law Review

Separation of Powers

Which Textualism?


The academic indictment of textualism was almost in. Although textualism has in recent decades gained considerable prominence within the federal judiciary,1×1. Charles E. Tweedy, Jr., Endowed Chairholder of Law & Director, Program in Constitutional Studies, University of Alabama School of Law. Many thanks, for helpful comments on earlier drafts, to Josh Blackman, Sam Bray, Aaron Bruhl, Jessica Clarke, Neal Devins, Heather Elliott, Katie Eyer, Richard Fallon, David Fontana, Cary Franklin, Laura Heymann, Bert Huang, Orin Kerr, Andy Koppelman, Anita Krishnakumar, Alli Larsen, Gary Lawson, Henry Monaghan, Victoria Nourse, Jim Pfander, Susan Provenzano, William Pryor, Richard Re, Naomi Schoenbaum, Larry Solum, Kevin Stack, and Chris Walker. legal scholars remain skeptical: critics argue that textualism is insensitive to the actual workings of Congress,2×2. See Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside — An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 905–06, 968–69 (2013) (urging, based on a survey of 137 congressional staffers responsible for drafting legislation, that “[i]f one were to construct a theory of interpretation based on how members themselves engage in the process of statutory creation, a text-based theory is the last theory one would construct,” id. at 969); see also Victoria Nourse, Misreading Law, Misreading Democracy 7 (2016) (arguing that textualism, along with other prominent interpretive theories, “misunderstand[s] Congress”). overly rigid,3×3. See Jonathan R. Siegel, The Inexorable Radicalization of Textualism, 158 U. Pa. L. Rev. 117, 120 (2009) (arguing that textualism becomes “less workable” as an interpretive method over time). or (conversely) overly malleable4×4. See Abbe R. Gluck, Justice Scalia’s Unfinished Business in Statutory Interpretation: Where Textualism’s Formalism Gave Up, 92 Notre Dame L. Rev. 2053, 2076 (2017); Victoria Nourse, Textualism 3.0: Statutory Interpretation After Justice Scalia, 70 Ala. L. Rev. 667, 668–69 (2019) (arguing that textualism does not provide objective answers). and thus not much different from its main competitor purposivism.5×5. See Anita S. Krishnakumar, Backdoor Purposivism, 69 Duke L.J. 1275, 1280, 1352 (2020); Jonathan T. Molot, The Rise and Fall of Textualism, 106 Colum. L. Rev. 1, 3 (2006); see also Jeremy K. Kessler & David E. Pozen, Working Themselves Impure: A Life Cycle Theory of Legal Theories, 83 U. Chi. L. Rev. 1819, 1821, 1823, 1848–54 (2016) (arguing that textualism, like other theories, has “shed many . . . core commitments” and thus “work[ed itself] impure,” id. at 1821). Moreover, some critics charge that textualism is not a neutral method of interpretation at all. Instead, these commentators insist, textualism is often used as a smokescreen by conservative judges to reach ideologically acceptable outcomes.6×6. See Neil H. Buchanan & Michael C. Dorf, A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism, 106 Cornell L. Rev. (forthcoming 2020) (manuscript at 37–42) (on file with the Harvard Law School Library) (urging that statutory textualism and constitutional originalism are “a rhetorical smokescreen for extremely Conservative results,” id. at 42); William N. Eskridge, Jr. & Philip P. Frickey, The Supreme Court, 1993 Term — Foreword: Law as Equilibrium, 108 Harv. L. Rev. 26, 77 (1994) (suggesting that “the new, tougher version of textualism advocated by Justices Scalia and Thomas . . . serves as a cover for the injection of conservative values into statutes”); see also Margaret H. Lemos, The Politics of Statutory Interpretation, 89 Notre Dame L. Rev. 849, 851 (2013) (reviewing Antonin Scalia & Bryan A. Garner, Reading Law (2012)) (noting that “textualism is widely regarded as a politically conservative methodology”); Alexander Volokh, Choosing Interpretive Methods: A Positive Theory of Judges and Everyone Else, 83 N.Y.U. L. Rev. 769, 771–75 (2008) (recognizing, but questioning, the “conventional wisdom” that “[t]extualism is a ‘conservative’ method of statutory interpretation,” id. at 771).

Enter Bostock v. Clayton County.7×7. 140 S. Ct. 1731 (2020). The case was the culmination of years of litigation asking whether discrimination against a gay, lesbian, or transgender individual qualifies as “discriminat[ion] . . . because of such individual’s . . . sex” under Title VII of the Civil Rights Act of 1964.8×8. 42 U.S.C. § 2000e-2(a)(1); see Civil Rights Act of 1964, Pub. L. No. 88-352, tit. VII, 78 Stat. 241, 253–66 (codified as amended at 42 U.S.C. §§ 2000e to 2000e-17). The text appeared to strongly favor the plaintiffs: terminating a male employee because he is romantically attracted to men, or dismissing an employee after she announces her transition from male to female, seem like instances of discrimination because of “sex.” And to the surprise of many (who doubted that textualism could lead to such a progressive outcome), that is precisely what the Supreme Court held.9×9. See Robert Barnes, Neil Gorsuch? The Surprise Behind the Supreme Court’s Surprising LGBTQ Decision, Wash. Post (June 16, 2020, 8:06 PM), https://www.washingtonpost.com/politics/courts_law/neil-gorsuch-gay-transgender-rights-supreme-court/2020/06/16/112f903c-afe3-11ea-8f56-63f38c990077_story.html [https://perma.cc/Q6BJ-AEU8]. In an opinion written by self-proclaimed textualist Justice Gorsuch10×10. See Neil Gorsuch, A Republic, If You Can Keep It 131–32 (2019) (“[T]extualism offers a known and knowable methodology for judges to determine impartially . . . what the law is.” Id. at 132.). Justice Gorsuch was clear about his preference for textualism during his confirmation hearing. See Confirmation Hearing on the Nomination of Hon. Neil M. Gorsuch to Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 115th Cong. 131 (2017) (statement of Judge Neil M. Gorsuch). (and joined by fellow conservative Chief Justice Roberts), the Court declared that “to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms . . . .”11×11. 140 S. Ct. at 1743.

This result may be reason enough to reexamine some assumptions about textualism. But Bostock revealed something more: important tensions within textualism. After all, the dissenting opinions purported to rely on textualism, too. The majority opinion applied what this Comment refers to as “formalistic textualism,” an approach that instructs interpreters to carefully parse the statutory language, focusing on semantic context and downplaying policy concerns or the practical (even monumental) consequences of the case. The dissenting opinions offered a more “flexible textualism,” an approach that attends to text but permits interpreters to make sense of that text by considering policy and social context as well as practical consequences. To “ordinary people” in 1964, the dissenters insisted, discrimination on the basis of “sexual orientation” was categorically different from, and not a subset of, discrimination on the basis of “sex.”12×12. Id. at 1766, 1772 (Alito, J., dissenting) (“[I]n 1964, ordinary Americans most certainly would not have understood Title VII to ban discrimination because of sexual orientation or gender identity.” Id. at 1772.); id. at 1828 (Kavanaugh, J., dissenting) (asserting that “common parlance” treated the categories as distinct). In sum, Bostock was not a case about textualism; it was a case about textualisms.

Scholarship on statutory interpretation has largely overlooked the divisions within textualism (perhaps because so many scholars reject textualism at the outset).13×13. These tensions are, however, suggested by some of the academic criticisms, which have urged that textualism is both too rigid and too malleable. See supra notes 3–5 and accompanying text. The academic debate tends to focus on whether an interpreter, particularly a judge, should be a “textualist” or a “purposivist.”14×14. See Richard H. Fallon, Jr., The Statutory Interpretation Muddle, 114 Nw. U. L. Rev. 269, 278–79 (2019) (characterizing the statutory interpretation debate as between textualists and purposivists); David S. Louk, The Audiences of Statutes, 105 Cornell L. Rev. 137, 148 (2019); Kevin M. Stack, The Interpretive Dimension of Seminole Rock, 22 Geo. Mason L. Rev. 669, 683 (2015); see also Abbe R. Gluck, Congress, Statutory Interpretation, and the Failure of Formalism: The CBO Canon and Other Ways that Courts Can Improve on What They Are Already Trying to Do, 84 U. Chi. L. Rev. 177, 191 (2017) (noting this emphasis, but anticipating that statutory interpretative theory is “(finally) entering the post–‘textualism vs purposivism’ era”). To be sure, there are other important methods. See, e.g., William N. Eskridge, Jr., Dynamic Statutory Interpretation 26–27, 157–59 (1994); Victoria F. Nourse, A Decision Theory of Statutory Interpretation: Legislative History by the Rules, 122 Yale L.J. 70, 73 (2012). And some statutory theories do not rest on Article I. See Adrian Vermeule, Judging Under Uncertainty 4–5, 150, 181, 186–87 (2006) (advocating textualism based on concerns about the judiciary’s limited institutional capacities); Ryan D. Doerfler, Who Cares How Congress Really Works?, 66 Duke L.J. 979, 1032–34, 1042–43 (2017) (proposing a “‘conversation’ model,” id. at 1032, drawing on due process principles of fair notice). The answer, it seems, depends largely on one’s understanding of Article I of the U.S. Constitution and the legislative process.15×15. Most theorists focus on statutory interpretation. As I argue in separate work, for other documents (such as presidential directives), theorists must look outside Article I. See Tara Leigh Grove, Presidential Laws and the Missing Interpretive Theory, 168 U. Pa. L. Rev. 877, 880 (2020). Textualists argue that judges must respect the (often messy) compromises reached through the bicameralism and presentment process of Article I, Section 7 by enforcing a clear text, even if it seems in tension with the apparent intent or purpose underlying the statute.16×16. See U.S. Const. art. I, § 7; infra section I.A, pp. 272–274. Purposivists contend that, given the complexity of the legislative process, Congress cannot be expected to put everything in the text, and thus judges should interpret a statute so as to fulfill its overall aims and goals.17×17. See Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process 1374 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) (advising that a court should “[i]nterpret the words of the statute . . . so as to carry out the purpose as best it can”); see also Stephen Breyer, Making Our Democracy Work 102 (2010) (“A court that looks to purposes is a court that works as a partner with Congress.”); Robert A. Katzmann, Judging Statutes 9–10 (2014) (arguing that a purposive approach better “[r]espect[s] Congress’s work product,” id. at 10).

But this focus on textualism versus purposivism papers over crucial differences within each theoretical field. As Bostock illustrates, there are competing strands of textualism. So let us suppose that a judge is convinced that the Article I lawmaking process counsels in favor of textualism. What kind of a textualist should she be?18×18. Throughout this Comment, I assume that an individual Justice has a good deal of discretion in selecting her preferred interpretive method. See also infra note 167. This Comment aims to give would-be textualist judges guidance on which form of textualism to select. But I also assume that some judges may not choose textualism at all.

This Comment argues that the answer to that question has less to do with Article I than with Article III — and the deep tension faced by Article III judges in our constitutional scheme. The Constitution creates a federal judiciary that is both shaped by politics and yet designed to be independent of politics. Article II provides that Supreme Court Justices shall be nominated by the President and confirmed by the Senate.19×19. See U.S. Const. art. II, § 2, cl. 2. This scheme injects politics into the selection of federal judges. At the same time, Article III creates an independent federal judiciary — one whose members enjoy tenure and salary protections.20×20. See id. art. III, § 1 (“The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”). Thus, upon assuming office, judges are supposed to be independent of the very political and ideological forces that gave them their jobs.

Bostock underscored this tension. Although the statutory text favored the plaintiffs’ Title VII claim, that was likely to be an uncomfortable result for many textualists. Even if textualism is (or can be) an ideologically neutral method, it has long been associated with the conservative legal movement.21×21. See Neal Devins & Lawrence Baum, The Company They Keep: How Partisan Divisions Came to the Supreme Court 117 (2019) (describing textualism and originalism as “two linked theories of legal interpretation that have reshaped Supreme Court decision making and strengthened the conservative legal movement”); Steven M. Teles, The Rise of the Conservative Legal Movement 145 (2008). And a number of the self-proclaimed textualists on the judiciary (including President Trump’s appointee Justice Gorsuch) were selected with the enthusiastic support of social conservatives,22×22. See Jeremy W. Peters, Conservative Groups Unify to Push Neil Gorsuch’s Confirmation, N.Y. Times (Feb. 1, 2017), https://nyti.ms/2k0dn4m [https://perma.cc/V8JS-B4VS] (describing how conservative organizations, including “evangelical and anti-abortion groups,” joined forces to support the nomination of Neil Gorsuch). many of whom emphatically opposed the plaintiffs’ claim.23×23. See sources cited infra note 241 (discussing social conservatives’ reactions to Bostock). The litigation leading up to Bostock also had a partisan valence: although the Obama Administration concluded in 2012 that Title VII’s prohibition on sex discrimination “by definition” encompassed the LGBTQ community,24×24. Macy v. Holder, No. 0120120821, 2012 WL 1435995, at *11 (E.E.O.C. Apr. 20, 2012); see Baldwin v. Foxx, No. 0120133080, 2015 WL 4397641, at *4 (E.E.O.C. July 15, 2015). The Equal Employment Opportunity Commission (EEOC) under the Obama Administration also initiated one of the three cases that the Supreme Court decided in Bostock. See Brief for Respondent Aimee Stephens at 11–13, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, 140 S. Ct. 1731 (2020) (No. 18-107) (describing how the EEOC brought suit after Aimee Stephens filed her complaint). the Trump Administration reversed course in 2017, insisting that such an interpretation would lead to “extreme”25×25. Brief for the Federal Respondent Supporting Reversal at 38, R.G. & G.R. Harris Funeral Homes, 140 S. Ct. 1731 (No. 18-107) [hereinafter Brief for the Federal Respondent]. and “absurd” results.26×26. Brief for the United States as Amicus Curiae Supporting Affirmance in No. 17-1618 and Reversal in No. 17-1623 at 17, 25, Bostock, 140 S. Ct. 1731 (No. 17-1618, No. 17-1623) [hereinafter Brief for the United States].

Interpretive method can, I argue, help a judge navigate this tension. This Comment contends that a federal judge should favor formalistic textualism — a relatively rule-bound method that promises to better constrain judicial discretion and thus a judge’s proclivity to rule in favor of the wishes of the political faction that propelled her into power. Formalistic textualism emphasizes semantic context, rather than social or policy context, and downplays the practical consequences of a decision.27×27. Although an emphasis on semantic context has been used to distinguish textualism from purposivism, see John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 76 (2006) [hereinafter Manning, What Divides], I argue that it is also an important distinction among textualisms. Notably, the division between formalistic and flexible textualism identified by this Comment also sheds light on some real, but underappreciated, disputes among textualists: formalistic textualism calls upon interpreters to apply only a “closed set” of normative canons28×28. Compare John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2474 (2003) [hereinafter Manning, Absurdity] (advocating a “closed set” of conventions), with Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 160–63 (2010) (critiquing the position that the set should be closed). and, relatedly, to rule out canons, such as the absurdity doctrine, that flexible textualism permits and that invite considerable judicial discretion.29×29. Compare Manning, Absurdity, supra note 28, at 2391 (“If one accepts the textualist critique of strong intentionalism, it is difficult to sustain the absurdity doctrine . . . .”), and John C. Nagle, Textualism’s Exceptions, Issues in Legal Scholarship, Nov. 2002, art. 15, at 3 (similarly rejecting the absurdity doctrine as incompatible with textualism), with Scalia & Garner, supra note 6, at 234–39 (endorsing the absurdity doctrine). A judge should, in short, aim to insulate herself from external influences, including the pull of partisan politics that urges her to decide a case in a particular way.

Formalistic textualism may at times seem “wooden.”30×30. Cf. Bostock, 140 S. Ct. at 1745 (noting that the dissents “dismiss [the Court’s treatment of Title VII] as wooden or literal”). But this approach has powerful normative justifications. First, this method is consistent with, although a refinement of, early textualists’ emphasis on constraining judicial discretion. Justice Scalia worried that a judge applying purposivism might (mis)read a statute so as to “pursue [her] own objectives and desires.”31×31. Antonin Scalia, A Matter of Interpretation 17–18 (Amy Gutmann ed., 1997). The concern here is not that an Article III judge will aim to fulfill a personal agenda, but instead that she will be influenced by the ideological forces that drive the Article II selection process. That is, she will feel pressure to rule for her “team.” Although no method can fully cabin judicial discretion, formalistic textualism aims to constrain those impulses.32×32. Notably, Justice Gorsuch faced pressure before the Bostock ruling and has been heavily criticized by social conservatives since the decision. See infra pp. 302–03.

Second, I want to advance a normative goal for textualism that has not previously been emphasized by the discourse on statutory interpretive theory. This Comment asserts that a judge should opt for formalistic textualism to help protect the legitimacy of the judiciary itself. In our polarized political environment, and in the wake of bitter confirmation fights (including over Justice Gorsuch), commentators have raised doubts about the legitimacy of the Supreme Court.33×33. See Tara Leigh Grove, The Supreme Court’s Legitimacy Dilemma, 132 Harv. L. Rev. 2240, 2240–42 (2019) (reviewing Richard H. Fallon, Jr., Law and Legitimacy in the Supreme Court (2018)) (collecting sources and discussing the controversies surrounding certain Supreme Court nominations and the related attacks on the Court’s “legitimacy”); infra section III.B, pp. 296–307. Observers worry that, when one ideological faction captures both the Presidency and the Senate — and thus controls the Article II selection process — that faction can “control” the Supreme Court and ensure that its decisions go in only one ideological direction.34×34. See infra section III.B.2, pp. 300–03.

Formalistic textualism can, I suggest, help to mitigate this pressure on judicial legitimacy. Given the mix of federal statutes, a Justice using this method should, as she moves from statutes enacted by conservative Congresses to statutes enacted by progressive Congresses, decide cases that accord with both “conservative” and “progressive” preferences. Moreover, this legitimacy-enhancing function should work even if only one or a subset of Justices adopts it. Given our country’s focus on individual judicial personalities,35×35. See Richard L. Hasen, Celebrity Justice: Supreme Court Edition, 19 Green Bag 2d 157, 158 (2016); Suzanna Sherry, Our Kardashian Court (and How to Fix It) 2, 4 (Vanderbilt Univ. L. Sch. Legal Stud. Rsch. Paper Series, Paper No. 19-30, 2019) (discussing and criticizing this tendency); see also Chad M. Oldfather, The Inconspicuous DHS: The Supreme Court, Celebrity Culture, and Justice David H. Souter 34–35 (Marquette L. Sch. Legal Stud., Paper No. 20-04, 2020) (critiquing the “celebrity culture”). it was significant in Bostock not only that the Court issued a textualist opinion that favored a progressive cause but also that a presumed-conservative Justice was the author.

At the outset, two caveats. First, this Comment draws a sharper distinction between formalistic and flexible textualism than one sees in practice. No self-proclaimed textualist on the Supreme Court appears to clearly prefer one version or the other. Instead, the Justices vacillate between the two strands,36×36. See infra note 167. perhaps in part because both have long travelled under the larger banner of “textualism.” Second, one could think of textualist practices not as fitting into two clearly defined categories, but as falling along a continuum — tending either toward the more formalistic or the more flexible end of the spectrum. On that view, this Comment offers reasons for textualists to aim for the more formalistic version — and to dispense with as many practices as possible that render textualism more flexible.

The analysis proceeds as follows. Part I offers background on the rise of textualism as a response to strong purposivism. This Part points to the early judicial treatment of Title VII’s sex provision as an important illustration of the potential dangers of purposivism. This example, which has unfortunately been largely ignored by textualists, not only provides important background for Bostock but also turns on its head the prevailing assumption that purposivism tends toward “progressive” outcomes, while textualism favors “conservative” ones. Part II then turns to Bostock and the two strands of textualism that have emerged: a more formalistic and a more flexible version. Part III advocates formalistic textualism in large part as a way to protect judicial legitimacy. But whether or not one accepts that bottom line, interpretive theorists should begin to grapple with the fact that judges apply not simply textualism but textualisms.



* Charles E. Tweedy, Jr., Endowed Chairholder of Law & Director, Program in Constitutional Studies, University of Alabama School of Law. Many thanks, for helpful comments on earlier drafts, to Josh Blackman, Sam Bray, Aaron Bruhl, Jessica Clarke, Neal Devins, Heather Elliott, Katie Eyer, Richard Fallon, David Fontana, Cary Franklin, Laura Heymann, Bert Huang, Orin Kerr, Andy Koppelman, Anita Krishnakumar, Alli Larsen, Gary Lawson, Henry Monaghan, Victoria Nourse, Jim Pfander, Susan Provenzano, William Pryor, Richard Re, Naomi Schoenbaum, Larry Solum, Kevin Stack, and Chris Walker.