Interpreting Law and the Useless Debates Over Textualism and Purposivism

 By Eric Segall

                                                                              "Stop Worrying Where You're Going, Move On"                                                                                                                                                                                                                                                              Stephen Sondheim, Sunday in the Park with George                                                                                                        

Is a fish a "tangible object" in a statute designed to combat white collar and other economic crimes? Does someone "carry" a gun in violation of federal law when the gun is in the glove compartment or trunk of a car?  Does the phrase "discrimination because of sex" in a federal employment discrimination statute prohibit adverse employment decisions based on LGBTQ status. These and many other issues have led to battles among Supreme Court Justices, lower court judges, and academics about the proper way to conduct statutory interpretation.

Over the last few weeks, I have had the distinct pleasure of discussing statutory interpretation with and in front of current and former judges, lawyers, and academics. I have been thinking deeply about these issues ever since 2015, when one law professor and one think tank libertarian tried to invalidate the Affordable Care Act, maybe the most important federal law passed since the Voting Rights Act of 1965, based on four words which they took completely out of context and by ignoring numerous other passages in the law as well as the dominant purpose of the law. That case was ridiculously easy, as I wrote in The Atlantic, but almost every term the Supreme Court faces much more difficult interpretative questions and, of course, the lower courts face these issues on a regular basis.

There is a tremendous volume of legal scholarship on the proper way to read statutes as well as, sadly in my view, a book apparently used by many judges written by the late Justice Scalia and Bryan Garner called Reading Law: The Interpretation of Legal Texts. This paen to false simplicity discusses the famous canons of statutory interpretation although, according to Professor William Eskridge, it covers less than one-third of the 187 canons Eskridge claims the Supreme Court has used in the past. Before Justice Scalia ever opened a law book, of course, the great Karl Llewellyn argued that for every canon there was an anti-canon, or at least enough exceptions to the canons to render them mostly unhelpful to ascertaining the meaning of state and federal laws.

The main dispute today is between those who identify as "textualists" or "strict textualists" and those who identify as "purposivists." The most important difference between these theories, which is often overstated, is that textualists focus mainly on the statutory text, and in most cases the common usages of the words in that text, while purposivists, while starting with the text, are also concerned with the purposes of the law at issue and the consequences of whatever interpretation the court decides to adopt. Everyone agrees these issues only arise when the statute in question is imprecise or unclear. Where the law is capable of only one meaning, judges should apply that meaning absent gross absurdity.

This blog post has one narrow objective given the oceans of words that have been spent on this topic, especially recently. With one minor exception, this post argues that this debate is silly and unnecessary. The reality is that textualists and even those who claim to be strict textualists often use the techniques of purposivists and purposivists of course take the text of statutes quite seriously. This debate is spent and we all should move on, as I explain below.

The one exception is for those judges who, following the lead of Justice Scalia, believe that legislative history should be ignored completely when they interpret statutes. This extreme position, which luckily very few judges accept, could certainly make a difference in some cases, especially in terms of the justifications for results judges write into their opinions. This blog post ignores the issue, however, because it has little bearing in the real world and the position is absurd, especially for a Justice who thought judges should try to ascertain the original public meaning of the ancient words of the United States Constitution by looking at sources such as the Federalist Papers.

We should move on from the textualist-versus-purposivist battles because, to put it simply, judges should use all relevant information to try and ascertain the meaning of statutory text and the purposes behind the law, which often includes a judge's best sense of what the law was trying to accomplish. There is simply not an either/or choice between text and purpose. The two are related and judges should not ignore one at the expense of the other. How the two will be balanced will of course depend on the specific facts and context of each case.

If you do not believe me, how about William Blackstone? He wrote the following as quoted by retired judge Richard Posner:

The fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law... [T]he most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it.

If  Blackstone is not a good enough source, how about Chief Justice John Marshall, who said that, "where the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived." This approach makes sense because different laws and different contexts require judges to use different methods to ascertain the meaning and applicability of statutory language. It simply is wrong to fence out ahead of time categories of information that are off limits to judges when what is relevant to meaning will change dramatically from case to case.

Although today's textualists might deny it, they too look at all relevant sources of information that will support their view of what the language of a law means or ought to mean. Here is self-professed textualist Justice Kavanaugh arguing that the words "because of sex" do not cover sexual orientation in Title VII:

Most everyone familiar with the use of the English language in America understands that the ordinary meaning of sexual orientation discrimination is distinct from the ordinary meaning of sex discrimination. Federal law distinguishes the two. State law distinguishes the two. This Court’s cases distinguish the two. Statistics on discrimination distinguish the two. History distinguishes the two. Psychology distinguishes the two. Sociology distinguishes the two. Human resources departments all over America distinguish the two. Sports leagues distinguish the two. Political groups distinguish the two. Advocacy groups distinguish the two. Common parlance distinguishes the two. Common sense distinguishes the two.

I am not defending Kavanaugh's ultimate conclusion in the case but this approach to statutory interpretation is consistent with Blackstone, Marshall, and common sense. It recognizes that in many cases, judges must look to a variety of sources, legal and non-legal, to understand the common use of language as well the spirit and reason behind the language. 

Justice Gorsuch's majority opinion in the Bostock case, while purporting to be based solely on the plain meaning of the text, actually relies on a host of other considerations, including prior case law, law professor type hypotheticals, dictionaries (which Congress may or may not have been aware of), and just under the surface but still there, an obvious (and in my view correct)  hostility to the negative consequences that would result from allowing employers to fire people because of their sexual orientation or gender identity. He would deny it but Gorsuch's opinion does not flow exclusively from the meaning of the words in the statute--not at all. (For a more detailed argument to this effect, check out this forthcoming article by Professors Mitchell Berman and Guha Krishnamurthi).

Some may object that I am too quickly glossing over the distinction many make between judges ascertaining the meaning of text and judges trying to understand the purpose or intention of the text. But the two are usually intertwined and judges who claim to ignore purpose most often do not do so. 

In Yates v. United States, the issue, as mentioned at the beginning of this post, was whether a fish was a "tangible object" for the purposes of a law passed mainly to stop financial crimes. Under the statute, a person may be fined or imprisoned for up to 20 years if he "knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence” a federal investigation. 

The defendant threw fish overboard after being told by federal investigators not to and was charged with violating the law. Although the majority and dissent battled over a large number of canons and other interpretative questions, their essential disagreement was over whether the statute at issue was meant to apply only or mostly to federal investigations involving financial crimes or whether the statute applied to all federal investigations. The majority believed the former (thus finding that the defendant did not violate the law) and the dissent the latter (finding that he did). Reading through the interpretative machinations in both opinions makes one's head hurt, especially because almost all of them were unnecessary because the real point of conflict was over purpose, not meaning. It is the rare and unusual judge who will read the words of a statute ignoring its context and the mischief the law was supposed to prevent.

Scholars reading this blog post might think the points I'm making are old hat, and in an important sense they are. After all, it has been fifteen years since John Manning (then a professor, now Dean of Harvard Law School) felt the need to write a Columbia Law Review article titled What Divides Textualists From Purposivists?, in which he responded to what was already then a substantial body of literature arguing that there is no meaningful distinction between textualism and purposivism. Manning acknowledged the force of the argument but pointed to some subtle differences, at least in principle. And yet, the distinction continues to be drawn. For example, last year, Professor Tara Grove wrote a Harvard Law Review article that began by acknowledging the view that textualism is now indistinguishable from purposivism but went on to argue, based on the intra-conservative dispute in Bostock, that there are now different versions of textualism. 

I do not mean to criticize the work of Dean Manning, Professor Grove, or any of the other scholars writing thoughtfully about statutory interpretation, but it is time to "move on" from this debate. As Blackstone and Marshall both recognized, judges reading laws should use whatever relevant information is available to them to determine the meaning and purpose of imprecise text. They almost always do so anyway. So let's just admit the truth and not pretend to or actually (in Scalia's case) put up pre-existing barriers to keep out what might be excellent tools to ascertain the spirit and reason of the law.