Wednesday, June 08, 2016

Does Textualism Have a Bias?

by Michael Dorf

My latest Verdict column characterizes Monday's SCOTUS opinion in Ross v. Blake as an example of the continuing influence of Justice Scalia on the Court. Justice Kagan's opinion for a unanimous Court is highly textualist. Although none of the remaining Court members other than Justice Thomas are as committed to textualism as Justice Scalia was, even the purposivist justices practice a brand of purposivism that is, as other scholars have noted, textually constrained.

The column is essentially descriptive. I say that Ross is evidence of Justice Scalia's continuing influence, but I do not say whether I think that influence is good or bad, liberal or conservative. Here I want to consider the latter question.

I'll begin with a bit of skepticism about the importance of ostensible methodological commitments. At least at the Supreme Court level, whether a justice professes textualism, purposivism, intentionalism, or pastafarianism as a method of statutory interpretation is likely to play less of a role in his or her decisions than ideological druthers. None of these approaches or any other is close to fully determinate, giving a good deal of room for a judge's values to play a major role. Moreover, even when a methodology appears to point reasonably clearly towards a result, judges sometimes disregard their methodological commitments in favor of their ideological ones. This phenomenon is mostly remarked upon in constitutional cases, but it happens in statutory cases as well. For example, here is a blog post I wrote about a year ago arguing that Justice Scalia overrode his methodological commitment to a certain brand of textualism in his dissent in King v. Burwell.

But suppose that textualism or some other methodology that is influenced by textualism is applied honestly without a conscious or unconscious effort to reach results with a particular ideological valence. Will the results nonetheless skew one way or another?

To answer that question, I'll assume, as I say in the column, that textualism posits that in general courts should look for answers in the four corners of the statutory text. If no answer can be found there, the party seeking relief—whether by way of a claim, a defense, or otherwise—loses. That's not all that textualism posits, of course, but it suffices for present purposes. In what follows, I will use "textualism" somewhat loosely to include textually-constrained purposivism as well as Scalia-style textualism. The basic idea (which I think is accurate in principle if not in practice) is that textualism thus understood will sometimes prevent an honest judge from reaching a result that he or she would favor simply on ideological grounds and that he or she could reach using some other methodology. I should be clear that in saying this, I don't mean to imply that other approaches to statutory interpretation are completely free-wheeling. The point is simply that textualism and textually constrained purposivism are somewhat more constraining than these other approaches, at least in some cases.

It should be immediately obvious that textualism thus understood does not inevitably lead to conservative or liberal results. If we say that in some context being pro-plaintiff is liberal while being pro-defendant is conservative, then textualism will have a liberal bias when the defendant offers an atextual defense and a conservative bias when the plaintiff offers an atextual claim. A nice example of textualism leading to a liberal result is Leatherman v. Tarrant County. A defendant said that for policy reasons there should be a heightened pleading requirement in civil rights suits against municipalities; a unanimous Court in a textualism-inflected opinion by CJ Rehnquist rejected the requirement on the ground that it is not contained in Federal Rule of Civil Procedure 8. True, the Court would later heighten the pleading requirements for all cases in the pair of cases now known as Twiqbal, but that's not my topic right now. For now, I merely wish to observe that textualism need not necessarily be conservative (or liberal).

What about on average? On average, does textualism honestly applied produce more liberal results, more conservative ones, or is it a wash?

I don't think there is a single answer for all times and places. For an ideologically conservative judge, textualism will sometimes tend towards liberal results the judge otherwise wouldn't reach, whereas for an ideologically liberal judge, textualism will tend sometimes towards conservative results the judge otherwise wouldn't reach. That's simply the consequence of saying (or assuming) that textualism is somewhat constraining.

How about a judge without an identifiable ideological orientation? As between conceiving of herself as a partner of the legislature authorized to fill in the blanks and conceiving her role as ruling against the party seeking the filling of a gap, which role will be more liberal or conservative? Or will there be no net ideological impact?

Now the answer would seem to depend on whether it is more likely that a plaintiff or a defendant is asking the court to fill a gap--assuming that on average siding with the plaintiff is liberal while siding with the defendant is conservative. That assumption may not be right, however. There are lots of circumstances in which the opposite is true. For example, siding with a RFRA plaintiff seeking an exception from an obligation to provide contraception insurance would code as conservative. So would siding with a Title VII plaintiff challenging an affirmative action program.

So maybe the question should be whether, in civil cases, textualism is pro-plaintiff or pro-defendant. (I put aside criminal cases, where the rule of lenity complicates matters.) The answer to this question, I think, is that on average textualism is pro-defendant. Again, there are lots of cases in which it's pro-plaintiff, but it strikes me that plaintiffs will be asking courts to fill gaps for them more often than defendants will. I would say there is probably a modest pro-defendant bias to textualism, and given that the pro-defendant view is somewhat more likely to be the ideologically conservative position, that means that textualism has a mildly conservative bias. This is ultimately an empirical claim, but it's one that would be very difficult to test.


Hashim said...

Isn't the more straightforward way to ask this question whether liberal *legislators/staff* are more likely to *leave gaps* than conservative ones? That's still a very difficult empirical question to answer, but it doesn't strike me as fundamentally more difficult to answer, especially given scholarship like Gluck's that focuses on the legislative process. And if it could be done, it'd be more accurate, since legislative party is a much stronger proxy for ideological result than is the pltf-deft dichotomy.

As to the answer, there's a bit of a circularity problem to asking the question right now. Currently, it wouldn't surprise me if conservatives left fewer gaps than liberals precisely because the latter generally are less supportive of textualism and more expectant that courts should gap-fill. So the question really would be how each side's legislators would act *if* it were clear that courts would consistently apply some form of textualism. Assuming arguendo equal levels of competence, the question would essentially be whether either party was more likely for some reason to need gap-filling by courts.

Frankly, I have the opposite reaction to you on that. I think pltfs generally need less gap-filling than defts, because the author of a piece of legislation concerning civil litigation is typically aligned with the pltf not the deft and thus more focused on the pltf's needs rather than the deft's. To be sure, that's not always true -- eg, legislation that's targeted at protecting defts. But it is true for most major legislation creating a new civil cause of action for the first time. And, at the federal level at least, such legislation is more often enacted by liberals than conservatives, as you've pointed out before, I believe.

Michael C. Dorf said...

I agree with just about everything Hash says here. I agree that it makes sense to look at the question from the legislative side as well as the judicial side, and that the two sides exist in a dynamic relation to one another. My one point of different emphasis perhaps would be to say that gaps are inevitable (see the Hart/Fuller debate). I was posing the question on the assumption that a given statute has whatever degree of specificity it can have. Presumably, competent legislators and staff aim for the greatest possible detail consistent with securing passage, precisely to avoid leaving issues up to the courts. Now if Hash is right that the enacting coalition will more often be liberal (and I agree this is a position I've taken in the past and continue to think is true on average), then that same coalition will want to be as specific as possible about eliminating defenses, not just about providing for claims. And again, there will be gaps on that side too. So my analysis holds constant gaps on the plaintiff side as well as the defense side, if you will, and then asks which side is more likely to want those gaps filled. My admittedly untested intuition remains that plaintiffs will somewhat more frequently want the gaps filled, simply because of a status quo bias in the law. But that is, I fully acknowledge, just an intuition.

Shag from Brookline said...

The sort of agreement in comments between Mike and Hash could have the late Justice Scalia spinning in his grave with the emphasis upon forms of legislative history involving liberal and conservative congressional staffs involved with legislation.

Joe said...

Text usually leaves open various end results especially if people are not just guided by it and from what I know of Scalia, that principle would apply to him too -- e.g., his application of the 1A religion clauses and equal protection clause (which he at times seemed to think said "by race").

This applies in applying statutes too including the case in question which left open a sort of escape hatch that can be applied in different ways. It is true that this depends on the exactitude of the text but then as products of compromise and politics, it usually isn't exact.

Shag from Brookline said...

Query: In addressing the title of this post, what "-ism" doesn't have a bias?

Hank Morgan said...

I tend to think textualism is more ideologically weighted toward conservatism than this post suggests. The reason is that American liberals by and large desire a more active federal government, while conservatives generally seek to limit the federal government’s reach. Textualism often lends a narrower reach to federal statutes, because it declines to apply a statute any more broadly than its literal terms. Purposivism, by contrast, tends to give statutes a capacious reach to ensure that they have their full intended effect.

This problem is hard to solve by simply drafting statutes to cover a greater range of cases, because it is hard for legislators to predict the most effective applications of statutes, especially years or decades in advance. To take one example, a law that protects privacy in electronic communications, written in an era of telephones and telegrams, will very likely be ambiguous with respect to whether it covers internet communications. A purposivist would be more willing to adapt the statutory solution to ensure that it remains workable and serves the broad purpsoe intended by the enacting Congress. A textualist, armed with dictionaries from the time the statute was enacted, will be more likely to exclude the newer technologies from the statute's reach.

If you assume that federal legislation will, on balance, serve liberal remedial purposes, then purposivism will more likely lead to more liberal results by broadening the scope of federal legislation.

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Shag from Brookline said...

Textualism deals with statutory interpretation as contrasted with originalism which deals with constitutional interpretation/construction. The exchange between Hash and Mike focuses on liberal and conservative congressional staffs involved with legislation. What if originalism took a similar approach with the framers/ratifiers? In this day and age of what constitutes a liberal view and what constitutes a conservative view, how would such be applied to the 1787 Constitution? Back then there were the Federalists and the Anti-Federalists. Are the former more like current day liberals and the latter more like current day conservatives, or vice versa, or entirely different? I thought of this as I recently read Samuel R. Olken's "The Refracted Constitution: Classical Liberalism and the Lessons of History, ' a 12-page article that addresses the contrasting views of Richard Epstein and Herbert Hovenkamp. While this post aims at textualism, originalism is related. Mike posts on both together from time to time and I have appreciated his views. In assessing originalism, current day liberalism and conservatism gets into the act of constitutional interpretation/construction. But like at the first Red Sox game I went to, the hawker informed me "You can't tell the players without a scorecard." Current day liberalism and conservatism have their biases as perhaps did the framers/ratifiers. How does history inform us of those biases? Lately, because of the success of the musical, Hamilton has come into vogue. Was Hamilton a liberal in the current sense? Hamilton was a Federalist. So was Madison a Federalist with the 1787 Constitution. But was Madison a liberal in the current sense? If he was, perhaps Thomas Jefferson changed Madison's views. Or is it the politics du jour? I need a scorecard.

barcrunchsub said...

Insightful Verdict column. As another legal commentator observed, Scalia is one of the few Supreme Court justices that changed the court more than the court changed him.