In her wonderfully-titled article, Which Textualism?, Tara Leigh Grove uses the recently decided Bostock v. Clayton County case to highlight a truth about statutory interpretation theory that scholars have largely ignored: Textualism is not a monolithic interpretive approach, but one that contains multiple competing strands. This observation is long overdue, and Bostock is an excellent vehicle for exploring its implications, given that the three separate opinions issued by the Court all claimed to employ a textualist interpretive approach—while reaching different outcomes.
Which Textualism? begins by differentiating between what Grove calls “formalistic textualism,” on the one hand, and “flexible textualism,” on the other—and uses this frame to discuss “some real, but underappreciated, disputes among textualists” regarding the universe of interpretive tools and resources courts should avail themselves of when interpreting statutes. Specifically, Grove argues that “formalistic textualism” authorizes interpreters to apply only a “closed set” of normative canons, whereas “flexible textualism” allows interpreters to consult a much wider range of canons, such as the absurdity doctrine, that invite considerable judicial discretion.
In Bostock, Grove contends that Justice Gorsuch’s majority opinion exemplified “formalistic textualism” because it focused intently on the statutory term “because of sex” and what that term means in the context of sexual orientation-based discrimination. By contrast, Grove characterizes both Bostock dissenting opinions as engaging in “flexible textualism”—because the dissents relied on atextual considerations including public views about homosexuality in 1964, other statutes enacted after Title VII, and the “far-reaching” consequences of construing Title VII to cover discrimination based on sexual orientation.
After elaborating the differences between “formalistic” versus “flexible” textualism, Grove provides some historical context for the Bostock case, tracking both the rise of textualism as a response to purposivism and the early judicial treatment of Title VII and sexual orientation claims based on a purposivist approach. Her point is that purposivism does not always tend toward “progressive” outcomes, and textualism does not always favor “conservative” ones. It is a point that others have made, but that bears repeating because it often gets lost in the focus on the U.S. Supreme Court, where the conservative Justices also tend to be the biggest proponents of textualism.
In the end, Grove endorses “formalistic,” as opposed to “flexible,” textualism—arguing that “formalistic textualism” is better at constraining judicial discretion and producing a predictable result, both rule of law values to which textualism aspires. But consistency with textualism’s own avowed interpretive goals is not Grove’s primary reason for championing “formalistic textualism;” rather, she has in mind her own unique normative goal for textualism: Grove argues that textualism can and should function in a manner that protects the legitimacy of the judiciary, by mitigating the ideological pressure judges naturally feel to rule consistently with their political preferences. Grove situates this new normative goal for textualism in Article III of the Constitution, which she reads to call for judicial independence and apolitical decisionmaking. Conversely, she notes that Article II injects politics into judicial appointments, by giving the appointment power to the President and Senate—and urges that a more cabined form of textualism could serve to alleviate the tension that inevitably exists between judges’ Article II-ensured political leanings and their Article III obligation to be independent.
Grove’s analysis of Bostock’s multiple textualisms is insightful and provocative. And her efforts to promote judicial independence and greater predictability in statutory interpretation are admirable. I am less enamored of her push for courts to adopt a more formalistic approach to textualism. (As I have explained elsewhere, I have doubts about whether a “formalistic” textualism can truly constrain judges in the manner Grove envisions and favor a more pluralistic approach to statutory construction, at least as a check on judges’ inevitable personal biases). That said, Grove’s recommended formalistic textualism approach—and particularly her Article III legitimacy rationale—is highly original and well-reasoned, and is worthy of attention from statutory interpretation scholars. Grove’s Article III arguments appear to be part of a larger project to promote judicial legitimacy, but that does not detract from the utter novelty of her normative take on textualism, or the incisiveness of her exposition of the multiple textualisms at work on the modern Supreme Court.
In short, Which Textualism? is a thought-provoking article and a highly enjoyable read, and it should be on the to-read list of anyone interested in Bostock, textualism, or questions about the judicial role and/or legitimacy of the Court.
It is a persistent theme in statutory interpretation theory—one shared by textualists, purposivists, and intentionalists alike—that a statutory term must have the same meaning from case to case and from litigant to litigant. The word “knowingly” in the same statute cannot mean one thing as applied to Sally and another as to Jim. To hold otherwise, courts and scholars have agreed, would violate fundamental principles of fairness and stability and upend the rule of law. Yet in a provocative and compelling new article, Can a Statute Have More Than One Meaning?, Ryan Doerfler makes a convincing case for rethinking this conventional view and contemplating just such variability of meaning.
Like all of Doerfler’s work, the article is incredibly smart and forces one to think about statutory interpretation in a fresh and unorthodox manner. Building on the linguistic observation that speakers can and often do communicate different things to different audiences using the same words or written text, the article argues that there is no reason to assume that Congress does not do the same—and several reasons to assume that it does.
Doerfler begins by using examples of familiar real world speech and written text to make the point that, linguistically, it is quite common for speakers and authors to communicate different things to different audiences using the same words. In so doing, Doerfler draws from linguistic theory and concepts such as “indexicals” but manages to do so in a manner that is accessible to non-linguists. The article then turns to making the case that Congress regularly employs terms—e.g., gradable adjectives such as “dangerous,” “serious,” or “significant”—that acquire meaning only in context, and argues that it makes sense to suppose that Congress would want such context-sensitive language to be interpreted differently across importantly differing contexts.
Ultimately, the article suggests a handful of applications in which its insights about the fallacy of presuming that all statutory terms have one meaning in all situations could have important implications. First, Doerfler points out that Congress deliberately has chosen to give some statutory provisions, such as the Immigration and Nationality Act (INA), both civil and criminal consequences and suggests that such statutes perhaps should be interpreted differently depending on whether the application at issue is civil or criminal. Specifically, he notes that the procedural and interpretive norms that govern criminal cases are much more forgiving to defendants than are those that govern civil cases, and suggests that canons such as the rule of lenity should apply when the provision at issue is being interpreted in a criminal context but not applied to the same statute when it is being interpreted in a civil context. That is, criminal defendants should receive the benefit of the doubt in marginal applications where the statute’s scope is ambiguous, but in civil cases, courts could resolve the same statutory ambiguities using other traditional tools of construction or, where appropriate, by deferring to an administrative agency’s construction of the provision.
Second, Doerfler observes that Congress often gives multiple administrative agencies authority to administer the same statutory provision—and that different agencies sometimes interpret that shared provision differently. He argues that at least in certain circumstances, such as where each agency has mutually exclusive authority over separate sets of regulated persons, Congress should afford Chevron deference to each agency’s individual interpretation of the provision, even where those interpretations differ.
I find Doerfler’s argument particularly compelling in the administrative law context. It makes logical sense that Congress could intend that different agencies be able to interpret differently the provisions they jointly administer with respect to the individual entities they independently regulate. That is, it is at least plausible that Congress may wish to allow the Federal Trade Commission to interpret a statutory term differently as applied to the companies it regulates than the Federal Communications Commission does as applied to media companies or than the Securities and Exchange Commission does as applied to securities brokers. Doerfler also argues that that it may make sense for Congress to have intended—and for courts to uphold—differing agency interpretations of “generic” statutes such as the Administrative Procedure Act (APA) or the Freedom of Information Act (FOIA) as applied to the unique proceedings conducted by each agency. That is, to defer to the SEC’s interpretation of the APA’s adjudication provisions for SEC proceedings, the NLRB’s (National Labor Relations Board) interpretation of those same adjudication provisions for NLRB proceedings, and so on.
In the end, Doerfler largely convinces me that scholars and courts should at least consider whether certain statutory provisions should be interpreted differently as applied to different audiences and in different contexts. His article also raises the important follow-on question: Why do courts persist with the one-meaning rule in this and other contexts (e.g., the whole act rule despite evidence that such rules may not accurately reflect congressional intent or legislative drafting realities? It may simply be that irrespective of congressional practice or intent, courts view it as part of their role to impose coherence on the law externally. That is, they may view it as their job, when Congress gives a statute a vague meaning, to step in and give it a settled, fixed one—i.e., to pick the best reading themselves and hold Congress to that meaning going forward. In other words, courts may see themselves as the instruments, or even imposers, of stability and coherence in the law. If so, Doerfler’s article rightly pushes them to reconsider whether stability and coherence necessarily must equate with uniformity.