Is Textualism Akin to Letting Judges Look Over a Crowd and Pick Out their Friends?

Anita Krishnakumar

Textualist jurists and scholars have long contended that their preferred interpretive approach is superior to competing approaches because text-based analysis limits judicial discretion and constrains judges. Indeed, the late Justice Scalia declared in his book, Reading Law: The Interpretation of Legal Texts, that a textualist interpretive approach would “narrow the range of acceptable judicial decision-making” and “curb—even reverse—the tendency of judges to imbue authoritative texts with their own policy preferences.”¹ Correspondingly, textualists long have criticized legislative history as an illegitimate interpretive tool that “has something for everyone” and “greatly increases the scope” of judicial manipulation of statutory meaning to suit the judge’s ideological preferences.² To date, these claims have gone largely untested, although several scholars have offered anecdotal evidence suggesting that textualism does not, in fact, constrain judges all that much.³

Enter Professors Brudney and Baum, who marshal an impressive dataset of 660 statutory decisions involving labor and employment law statutes decided between 1969 and 2024 in order to measure empirically how well textualist interpretive tools constrain judicial decision making. The result is an article rich in both empirical and doctrinal analysis of liberal and conservative justices’ use of textual canons, legislative history, and legislative purpose to reach interpretive outcomes consistent (or inconsistent) with their ideological preferences. Because their dataset is so broad—covering 54 terms’ worth of cases—Brudney and Baum are able to document historical changes and draw historical comparisons that other scholars have only been able to gesture at anecdotally.

The authors report several important findings, summarized below:

First, although this will surprise no one, Brudney and Baum document dramatically and convincingly just how much the Court has increased its reliance on textualist tools, and correspondingly, decreased its reliance on purposivist and intentionalist tools between 1969 and 2023. For example, majority opinion rates of reference to dictionary definitions jumped from 1.0% during the 1969-1976 terms to 30.6% during the 2014-2023 terms; rates for language canon usage more than tripled from 14.6% during the 1969-1976 terms to 47.2% in the 2014-2023 terms; while rates for legislative history and purpose plummeted from 48.5% (history) and 84.5% (purpose) during the 1969-1976 terms to 13.9% (history) and 45.8% (purpose) during the 2014-2023 terms. Although I study the Court’s statutory cases closely, I found the magnitude of these increases and decreases stunning.

Second, the authors found that during the Rehnquist and Roberts Courts, both conservative and liberal justices reached outcomes that were consistent with their ideological preferences more often when they authored opinions that employed ordinary meaning than when they did not. (The sole exception was that during the Burger Court, liberal justices reached conservative outcomes more often when they employed ordinary meaning than when they did not). Thus, the authors conclude that there is no empirical evidence that ordinary meaning analysis—one of the touchstones of textualist interpretation—constrains judges to decide cases in a manner inconsistent with their ideological preferences, and there may even be some evidence that on the modern polarized Court ordinary meaning analysis enables judges more freely to adopt statutory constructions consistent with their ideological preferences.

Third, Brudney and Baum find interesting temporal changes in the relationship between judicial reliance on legislative history and the ideological valence of an interpretation. That is, the data reveal that during the Burger Court, authoring justices (especially conservative justices) were “substantially” more likely to reach an interpretive outcome inconsistent with their ideological preferences when they invoked legislative history than when they did not. However, during the Rehnquist and Roberts Courts, this pattern flipped for conservative justices—who were more likely to reach conservative outcomes when invoking legislative history than when not citing such history. For liberal justices, the rates of reaching conservative outcomes stayed almost the same whether they invoked legislative history or did not invoke such history (although liberal justices were slightly more likely to reach a conservative outcome when relying on legislative history than when not doing so). Brudney and Baum observe that in the modern era, the textualist critique that legislative history is easily manipulable has become a self-fulfilling prophecy—and they posit that textualist jurists may be more likely to use legislative history strategically in the modern era because of their jaundiced view of the manipulability of this interpretive resource.

There are other, more nuanced, empirical findings sprinkled throughout the paper, but I will leave those for readers to discover themselves.

To close, Brudney and Baum also provide a series of close doctrinal comparisons of “dueling” majority and dissenting opinions that both invoke legislative history as well “dueling” opinions that both invoke ordinary meaning. The upshot of their doctrinal analysis is that the justices duel over ordinary meaning just as much, and in many of the same ways, as they duel over legislative history. In other words, the infamous textualist critique that “there is something for everyone” in the vast legislative history of a statute is just as true for ordinary meaning analysis. Brudney and Baum thus conclude that “reliance on ordinary meaning allows for judicial discretion to the same substantial degree and along exactly the same categorical lines as when justices rely on legislative history” and that “there is every reason to conclude that the stock critique of legislative history (the risks of picking out your friends in a crowd) is comparably applicable to textual analysis.”

In short, Does Textualism Constrain Supreme Court Justices? provides much-needed empirical testing of one of textualist interpretive philosophy’s key claims. It is, of course, just one article, and much more work needs to be done in this area, but Brudney and Baum provide an admirable and welcome first foray into tackling this important empirical question. Anyone interested in statutory interpretation should read this article with interest!

1. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts xxviii (2012).
2. Id. at 377-78.
3. See, e.g., William N. Eskridge, Jr., & Victoria F. Nourse, The Eclipse of Republican Government in an Era of Statutory Populism, 96 N.Y.U. L. Rev. 1718 (2021).