Late-Stage Textualism

Abstract

In its modern form, textualism promised to be less wooden than its earlier manifestations through careful attention to interpretive context. By recognizing the inherently flexible, practical nature of words, modern textualists would thus be able to avoid the embarrassing ‘contradictions’ that saddled their predecessors. To avoid that sort of embarrassment, though, required that textualists be more modest about the determinacy of statutory language. To make their method of interpretation less wooden, after all, was to make it more nuanced and, accordingly, to make it more vulnerable to reasonable disagreement about its application in individual cases. To back away from the ‘foolish pretense’ of statutory determinacy was awkward, though, in a legal environment disfavoring the open exercise of judicial discretion, and all the more so for proponents of an interpretive methodology grounded so explicitly in a commitment to democratic self-rule and opposition to juristocracy.

To the extent that it did, modern textualism was able to incorporate a more Realist understanding of legal determinacy because it also contained a (concededly modest) commitment to judicial non-intervention. That commitment is, however, now mostly gone. Seemingly motivated by a desire to accrue power to a now firmly conservative judiciary, a combination of interpretive methodological conversions and new judicial appointments has yielded a federal judiciary committed not only to textualism but also to deciding the cases before them on the basis of “independent” judicial judgment. And because the legal environment continues to disfavor the open exercise of judicial discretion—and understandably so, given judges’ comparative lack of democratic legitimacy —the result has been increasingly wooden analysis, giving new and unfortunate relevance to Llewellyn’s near-century old critique.

Keywords: statutory interpretation, Llewellyn, textualism