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The Letter of the Law: Unpacking the History of Textualism

Close-up of a typewriter with the phrase "Words have power" typed on the page
By Laura Temme, Esq. on June 24, 2020 8:21 AM

The Supreme Court's recent landmark decision on employment discrimination has many of us talking about statutory interpretation. But although Justice Neil Gorsuch's agreeance with the more liberal justices on the court came as a surprise to many of us, his textualist views did not. Justice Gorsuch has long been a proponent of the textualist approach, which has existed in one form or another for decades. And although it's never quite been mainstream, those who subscribe to it are often very devoted.

What Is Textualism, Exactly?

When interpreting a law, textualists consider only the actual words of a statute rather than thinking about legislative intent or policy arguments. In theory, textualist interpretation is content-neutral. It often focuses on dictionaries, grammar rules, and the "ordinary meaning" of words.

Justice Gorsuch's recent opinion on Title VII is an excellent example of this. Rather than analyzing whether the drafters of the 1964 Civil Rights Act meant to protect the LGBTQ+ community, Gorsuch focused on the words of the statute. The law prohibits discrimination "because of sex." It doesn't say "solely because of sex." Therefore, he concluded, it applies to discrimination based on sexual orientation or transgender identity - factors that are tied to a person's sex.

The Origins of Textualism

The idea of textualism in American law has existed for quite some time. In 1930, Justice Oliver Wendell Holmes wrote that there was "no warrant for seeking refined arguments to show that the statute does not mean what it says."

However, the term "textualism" didn't appear in Supreme Court jurisprudence until Youngstown Co. v. Sawyer in 1952. In his concurrence, Justice Robert Jackson argued against the rigidity of textualism, writing that he wished to "give to the enumerated powers the scope and elasticity afforded by what seems to be reasonable."

The textualist approach has evolved over the years, generally focusing on judges being interpreters of the law and not creators of law.

Notable Textualists

Although only a few judges hold themselves out as strict textualists, many begin their statutory analysis with the text. Justice Ruth Bader Ginsburg, along with Justice Stephen Breyer, tends to focus on four elements of interpretation, in this order: text, structure, purpose, and legislative history.

In the 2015 Antonin Scalia Lecture Series at Harvard, Justice Elena Kagan went even further and famously declared, "we're all textualists now."

Speaking of Justice Scalia, the subject of textualism rarely comes up without the late justice's name close behind. Before his time on the Supreme Court, the reigning method of interpretation was examining legislative intent. Justice Scalia, however, argued that the court's job was to follow what the law says - no more, no less.

"We are governed by laws, not by the intentions of legislators." - Justice Antonin Scalia, Conroy v. Aniskoff (1993)

Justice Scalia's views had a tremendous influence on American jurisprudence, but it seems they never quite caught on with federal judges in general. Justice Gorsuch is arguably the most notable rigorous textualist on the Supreme Court since Scalia. However, legal scholars place several others on a textualist "spectrum," including former Justice Anthony Kennedy, current Justices Samuel Alito and Clarence Thomas, and Chief Justice John Roberts.

As the Bostock opinion will undoubtedly have a ripple effect across the federal circuits, we might see more judges using this precedent to justify a textualist approach. After all, who wants, as Justice Gorsuch puts it, a "canon of donut holes?"

Related Resources:

Gorsuch Proves His Textualist Chops During First Oral Arguments (FindLaw's Supreme Court)

Study: Scalia in the Casebooks (FindLaw's Supreme Court)

Legal Writing Tips From Gorsuch's Opinions (FindLaw's Greedy Associates)

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