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.