Textual Gerrymandering: The Eclipse of Republican Government in an Era of Statutory Populism

Abstract

The Supreme Court’s decision in Bostock v. Clayton County catapulted textualism from legal arcana to national news.1 Justice Gorsuch, writing for a 6-3 Court, ruled that the 1964 Civil Rights Act bars sexual orientation and gender identity job discrimination, astonishing liberals with his method and confounding conservatives with the result. His majority opinion insisted that the “original public meaning” of the text resolved the case. Justices Alito and Kavanaugh argued passionately in dissent that Justice Gorsuch had forsaken textualism. The intense methodological debate among three originalists befuddled Court-watchers. Could the textualist methodology yield liberal results? Was original public meaning more dynamic than people thought? Given the sharp disagreement among the Justices, is textualism less objective, determinate, and neutral than advertised?

As Bostock illustrates, textualism is fracturing, dividing itself into camps. It is time to think much harder and deeper about its methodology, its meta-theoretical foundations, and its overall legitimacy within our constitutional democracy. To begin with, textualism or original public meaning in action is far from a mechanical jurisprudence, where judges applying its method are driven inexorably toward a single answer. As this Article suggests, in any difficult case, the textualist judge starts with a choice of text and a choice of context. Once relevant text has been chosen, textualist theory requires a framework for interpreting it. Context once meant judicial consideration of legislative purpose and history, but in today’s Court choice of context is more likely to consider the whole act, the whole code, and the larger corpus of statutory law. And whatever text and context have been selected will be framed by the judge’s choice among dozens of canons of statutory construction.

In this Article, we theorize this feature of statutory interpretation in terms of production and consumption economies: Should interpreters focus on the readers/consumers of statutes (citizens) or the authors/producers of statutes (Congress)? On its face, the now dominant Supreme Court approach elevates the consumer perspective and obliterates that of the producers. In practice, however, the judicial perspective controls. That is, strict textualism or originalism amount to judicial aggrandizement under cover of populist rhetoric. We are losing our constitutional tradition of representative democracy, whose legitimacy rests upon public and legislative deliberation. Textualism and original public meaning pose a double threat to the rule of law: its method substitutes judicial for legislative evidence and marginalizes public deliberation. Our critical stance toward strict the strictest version of textualism does not lead us to revive old-fashioned purposivism, but it does impel us to propose ‘legislative’ or ‘republican evidence’ as a necessary complement to ‘public meaning’ as tools of statutory interpretation.