A New Era in SCOTUS Textualism

Legal interpretation begins with a legal text. At least in theory it does.  While in practice this is not always the case, textualism has become synonymous with conservatism in recent Court eras primarily due to Justice Scalia’s reliance on the language of statutory texts.  In practice, a textualist approach is not limited by judicial ideology and in recent months liberals members of the Court have spoken candidly about embracing textualism.  After Justice Scalia passed away and Justice Gorsuch was nominated to the Court, Gorsuch was heralded as the next great hope for textualism.  Justice Gorsuch lived up to this expectation with his one majority opinion on the Court so far in Henson v. Santander. This post examines the justices’ and attorneys’ applications of textualism in oral arguments and in opinions to chart the Court’s recent trajectory of this interpretive theory and to forecast whether we can expect Justice Scalia’s textualist legacy to live on.

Possible Cases

How can we empirically gauge the justices’ textualist approaches? First there is the question of how frequently such an approach is even relevant.  This data examined in this section is from the 2013 through the 2016 terms.  Coding from the Supreme Court Database provides a universe of possible cases.  The first chart looks by majority authoring justice at cases where the Court examined a federal statute or code section.

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This chart shows instances where justices have little discretion since they are assigned the majority opinions.  They do, however, have some agency over the interpretive approach.  As this chart makes evident, Justice Kagan was assigned the most such cases since 2013 followed by Justices Thomas, Alito, and Sotomayor.  Next, the Database also provides the main decision authority in each case.  The second chart looks by majority authoring justice at the number of statutory construction/interpretation cases since 2013.

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Looking at the justices along this dimension provides a similar picture to that in the first chart with Chief Justice Roberts moving into the second tier along with Justices Thomas, Alito, and Sotomayor.  Justice Scalia was actually assigned the fewest of these majority opinions of all justices notwithstanding Justice Gorsuch.  To get a sense of the types of cases that compose this set, the next chart breaks down the statutory interpretation cases by issue area in all instances where a justice wrote at least two majority opinions in the issue area.

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Some characteristics stick out from this chart.  Justice Thomas lacks much case diversity as most of his statutory construction majority opinions dealt with economic activity.  Justices Breyer, Kennedy, and Sotomayor mainly wrote majority opinions in statutory construction cases dealing with economic activity as well.  Justice Kagan’s statutory construction cases predominately focused on criminal procedure while the other justices had more even divisions of cases across issue areas.

Uses of Textualism

To delve into the actual applications of textualism we need a way to distinguish when such an approach is employed.  I included cases argued and decided so far this term in this set.  This gives us a bit more of an understanding of how Justice Gorsuch fits in with the other justices.  For the purpose of this post, I characterized an approach as textualist when it applied textualist language with one or more of four phrases including: “plain meaning,” “plain text,” “plain language,” and “ordinary meaning” (this only proxies the uses of textualism as there are many other phrases that connote a textualist approach). I looked for these cues in oral arguments and in majority and secondary opinions.

In oral arguments these phrases were most often articulated by attorneys.  Four attorneys used such phrases in more than one oral argument since 2013.  These attorneys, all veterans of the Court, include Michael Carvin and Sam Bagenstos using this language in two oral arguments and Rachel Kovner and former Scalia clerk Kannon Shanmugam using this language in three oral arguments.  Shanmugam’s textualist approach in this term’s Digital Realty Trust v. Somers argument is probably the most notable of the term so far.  Other notable instances of attorneys focusing on textualism from recent years include Michael Carvin’s argument in King v. Burwell, Nowell Berreth’s argument in Dart Cherokee, and Aaron Lindstrom’s in Coleman v. Tollefson.

Justices only used this textualist language in limited instances during oral arguments.  Even though he has sat on the Court for the shortest period of time, Justice Gorsuch employed one or more of these phrases in five oral arguments which is cumulatively more than any other justice used such phrases since the 2013 term.  Also somewhat surprisingly, there were only two instances where a justice used such language in an oral argument and in a majority or secondary opinion in the same case.  These two instances were from Justice Scalia in Sandifer v. U.S. Steel and Justice Kagan in Voisine v. United States.  Scalia’s majority opinion in Sandifer along with his concurrence in NLRB v. Canning are two of the most prominent instances of his usage of textualism over the course of these recent terms.

Who is the justice that used this textualist approach in the most cases since 2013? The following chart shows the total cases where justices used such approach and breaks this down into uses during oral arguments and majority and secondary opinions.

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Since Justice Thomas typically says nothing during oral arguments, there is no way to gauge his engagement in the topic from those proceedings alone.  Primarily based on his secondary opinions though (13 of which use textualist language), Justice Thomas employed a textualist approach more than any other justice across this period.  As justices have much discretion with their secondary opinions this is an apt way to gauge a justice’s interpretive strategy.  Justices Scalia and Sotomayor applied textualist language in the most secondary opinions after Justice Thomas.  Justice Sotomayor applied this language most often in majority opinions followed by Justice Kagan (who we might expect to based on majority opinion assignments).  As discussed earlier Justice Gorsuch used such language in more oral arguments than any other justice since the 2013 term.

Next some aggregate statistics.  The justices used this language in 69 signed decisions (majority, secondary opinions, or both) out of a total of 257 since 2013.  This includes 49 times in majority opinions, 33 in secondary opinions, and 12 times in both.  This means that 64% of cases where this textualist language was employed in secondary opinions it was not employed in majority opinions and 75% of the cases where it was used in majority opinions it was not used in separate opinions.  A justice, attorney, or both used such language in 62 oral arguments since the 2013 term.  This textualist language was used 28 times in both oral arguments and in at least one opinion in the same case.  Based on these numbers, 55% of cases where this language appeared in oral arguments did not have it in the opinions and 60% of the cases where this language appeared in an opinion did not include it in oral arguments.

Three items identified in this post provide evidence for the likelihood of the Court’s continued, strong reliance on textualism moving forward.  The first is the consistent use of the textualist approach from the Court’s conservatives and especially from Justice Thomas.  The second is both the use and the description of the importance of the use of textualism from the Court’s liberals – especially Justice Kagan.  The third is Justice Gorsuch’s high rate of using this language in oral arguments and in his opinions. Since Justice Gorsuch has only written a handful of opinions (only of of which is a majority opinion) so far on the Court, Justice Gorsuch’s writings this term will better dictate how he will facilitate the Court’s use of textualism for years to come.


On Twitter: @AdamSFeldman

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