A SCOTUS Roundup Focused on Textualism (with a Concluding Thought About Democracy)

As I have done now for a quarter century around this time of year, today I'll be spending the day along with various lawyers, journalists, and other law professors recapping the most recent Supreme Court Term at the Practicing Law Institute. I always enjoy these sessions--and I'm especially pleased to be doing this one in person after three years of Zooming. I look forward to an engaging day discussing the highlights and (more importantly) the lowlights of the most recent Term.

In addition to the blockbuster rulings on affirmative action, free speech as a limit on antidiscrimination law, voting rights, and administrative law (including the student debt case and the denial of standing in the border case), we will delve into some of the lower-profile cases. I've already written about most of the cases I'll be presenting -- especially National Pork Producers Council v. Ross, about which I wrote, in chronological order, this, this, this, this, this, and this.

But in addition, to prepare for today's panels, I also read some cases to which I didn't pay much attention because they fall outside my core expertise. Perhaps the most eye-opening was Dubin v. United States, in which the Court held that to be guilty of "aggravated identity theft" it is not sufficient that the defendant used another person's identification in some way in connection with a fraud -- as when the defendant submitted a fraudulently inflated charge to Medicaid that included a patient's Medicaid number; rather, the use of someone else's identification or identity must be the "crux" of the fraud.

That outcome was unanimous and wholly sensible. It comports with what Congress almost certainly had in mind when it enacted the relevant statutory provision. I nonetheless found the decision remarkable because Justice Sotomayor's opinion for the Court was, in its style, wholly textualist. Legislative history was relegated to a brief footnote that began as follows: "Those who find legislative history helpful will find further support." The self-consciously textualist style of the majority--written by an outspokenly liberal Justice--underscores a point Justice Kagan made in 2015 when she said "we're all textualists now."

Last year, in her dissent in West Virginia v. EPA, Justice Kagan recanted. She wrote: "It seems I was wrong. The current Court is textualist only when being so suits it." Yet Justice Kagan joined Justice Sotomayor's Dubin opinion in full. Is the lesson that the Court's liberals are principled textualists while its conservatives are opportunistic hypocrites?

Not exactly. As Professor Buchanan and I have argued at length, textualism was always sufficiently unconstraining to permit jurists who are inclined to write in a textualist style to reach the same range of results that those inclined to write in a more purposivist style are. Indeed, as we noted in the paper linked just above, Justice Kagan's 2015 remark that "we're all textualists now" meant what Professor Jonathan Molot had written already in 2006 in an article aptly titled The Rise and Fall of Textualism: namely, that textualism has become so well assimilated into judging that there no longer is a distinctive textualist position that differs from purposivism, its ostensible chief rival.

Put differently, Justice Kagan wasn't wrong in 2015. Nor was she wrong in the main thrust of her West Virginia v. EPA dissent. Textualism -- like the major questions doctrine that that Justice Kagan critiqued in that case -- was always a tool for disguising value judgments as the application of neutral principles. The conservative majority in West Virginia v. EPA almost certainly could have given effect to its anti-regulatory ideology in a textualist opinion.

Indeed, this past Term, in her concurrence in Biden v. Nebraska, Justice Barrett claimed that the major questions doctrine is not a "substantive canon" that the Court imposes on Congress in order to limit delegations of power to administrative agencies but a part of the "context" of a statute. After all, even Justice Scalia (Justice Barrett's mentor) used to emphasize that textualists attend to context. Thus, Justice Barrett concluded, "the major questions doctrine is a tool for discerning -- not departing from --the text's most natural interpretation." Textualism, like Walt Whitman, contains multitudes. 

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So much for textualism. I imagine that much of today's opening/overview panel will be spent discussing the Harvard/UNC affirmative action case--which is appropriate. I have a whole lot of thoughts about that issue, of course, but I also hope that we'll spend some considerable time during the overview and later panels on the 800-pound gorilla that menaces American democracy. The long-overdue indictment of Donald Trump for his efforts to subvert American democracy after the last Presidential election serves as a reminder that, regressive as the Supreme Court currently is and has been for nearly all of U.S. history (with the exception of the Warren Court), an independent judiciary remains an essential feature of constitutional democracy.

The indictment notes how Trump's efforts to challenge the results of the 2020 election in court were "uniformly unsuccessful." What it doesn't say, but is implicit, is that a great many of the jurists who rejected Trump's challenges were Republicans, some of them his own appointees. For example, this very powerful opinion for the Third Circuit by Trump appointee Judge (and U Penn Law Professor) Stephanos Bibas underscores the essential virtue of courage in the judiciary. Even now, our reactionary and in some respects partisan Supreme Court does not regard itself as a mere implement of the president, regardless of party. 

I would like to think that recognition of the vital role of judicial independence in a constitutional democracy played at least some role in the Court's decision to reject the most aggressive version of the "independent state legislature theory" in Moore v. Harper -- given how that theory could be used by Trump to carry out legally what he attempted illegally in 2020: rallying state legislatures to overturn the results of the election.

Professor Laurence Tribe observers in a recent review essay in The New York Review of Books that authoritarians from Poland to Hungary to Israel have recently aimed to consolidate their power by neutering the judiciary as a check. The challenge, as Professor Tribe writes, is to constrain the Court so that it does not continue to frustrate American democracy but not cripple it so that it is unable to preserve democracy's remnants in the face of the Trumpist menace. I don't have great confidence that our nation will meet that challenge. I do know that it should be the central focus of any contemporary discussion of the Court.