In a new book, Reading Law: The Interpretation of Legal Texts, Justice Antonin Scalia and Bryan Garner describe and defend the textualist methodology for which Justice Scalia is famous. For Scalia and Garner, the normative appeal of textualism lies in its objectivity: by focusing on text, context, and canons of construction, textualism offers protection against ideological judging—a way to separate law from politics. Yet, as Scalia and Garner well know, textualism is widely regarded as a politically conservative methodology. The charge of conservative bias is more common than it is concrete, but it reflects the notion that textualism narrows the scope of federal law in ways that are attractive to Republicans but not to Democrats. Scalia and Garner hotly deny that charge. Like their critics, however, they fail to develop the argument, or to confront the association of textualism and conservatism in contemporary legal and political rhetoric.
This Review explores the connections between textualist methodology and conservative politics, and between methodological and political argument more generally. It shows that textualism is not inherently conservative in design, nor does it reliably produce conservative results. Instead, I argue,the link between textualism and conservatism is historically contingent. It was fused in the rise of the New Right in the 1980s, when conservative judges and politicians embraced textualism in statutory interpretation (together with originalism in constitutional interpretation) as antidotes to the “judicial activism” of the Warren and Burger Courts. Adopting the language of methodology gave Reagan-era pundits an efficient—and legal— means of critiquing existing law and pushing for legal change.
Although the story here is about textualism, the lesson is broader. To understand the relationship between textualism and conservatism is to appreciate the political potential of all methodological argument. The features that make methodology most law-like—its facial neutrality and its generality— may also, paradoxically, increase its value as a political tool. By focusing on the “how” of the law, methodology transcends individual cases and issues; it provides a basis for attacking wide swaths of judicial doctrine at once. Precisely because methodology offers a seemingly neutral basis for criticizing judges across a range of cases, it is a uniquely potent force for (and against) legal change—which, in turn, makes it an especially valuable device for popular and political contestation about the law. In this sense, debates over methodology may often, perhaps inevitably, have roots in something much bigger, something we might properly call “political.”
Margaret H. Lemos,
The Politics of Statutory Interpretation,
Notre Dame L. Rev.
Available at: http://scholarship.law.nd.edu/ndlr/vol89/iss2/7