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Justice Kagan And Textualism, That Word Does Not Mean What She Thinks It Means

Seven years ago, during the Antonin Scalia Lecture series at Harvard Law School, Justice Elena Kagan famously proclaimed, “We’re all textualists now.” Yet in her dissent in the Supreme Court’s recent decision in West Virginia v. Environmental Protection Agency, Justice Kagan changed her tune by questioning the majority’s commitment to textualism, writing that “the current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.” 

Combine Justice Kagan’s criticism with media coverage describing recent Court decisions as “stripping” constitutional rights, and you may be convinced the Supreme Court is engaged in overreach and arbitrary—or, worse, partisan—decision-making. The reality is the exact opposite: The Court’s decisions throughout the past term are predictable results of a judicial philosophy based in text and history, correcting several decades of judicial activism. When interpreting a statute, one begins with interpreting the text as it is written, not as one thinks it should be written.
 Judicial Overreach Contrary to the outcome-oriented jurisprudence that Justice Kagan describes, numerous significant decisions from the past Supreme Court term restore the Founders’ vision of the constitutional separation of powers arising from the grant of authority to the judiciary under Article III of the Constitution, balanced in equal part with the authorities given to the executive branch and to Congress under Articles I and II. 

Rarely, if ever, has the Supreme Court stepped back from its well-established pattern of judicial overreach, voluntarily relinquishing power to another branch of government. But with several recent decisions, a majority of the Court has demonstrated a willingness to do just that. For too long, judges have acted as “politicians in robes,” dictating important matters of public policy in all 50 states. In Dobbs v. Jackson Women’s Health Organization, the Court overruled the decisions in Roe v. Wade (1973) and its follow-up Planned Parenthood v. Casey (1992).

The Roe Court purported to find a right to abortion that springs from a right to privacy found somewhere in the First, Fourth, Fifth, Ninth or Fourteenth Amendments, conceding that “the Constitution does not explicitly mention any right of privacy.” The Court has previously found some unenumerated rights (e.g., the right to marital privacy, right to travel, right to vote) protected by implication from other text in the Constitution and historical practice. Yet few constitutional rights are absolute. Determining the extent to which a constitutional right is protected against government regulation requires consideration of temporal framing mechanisms such as the original meaning, what other rights existed at that time and what canons of construction were commonly used by courts. For example, the right of privacy guaranteed by the Fourth Amendment can be overcome by a warrant, and the right to free speech may be subject to “time, place and manner” restrictions or fighting-words exceptions.

So there is no textual basis to support a conclusion that an implied right of privacy, without more, prevents government from regulating based on arbitrary timelines or balancing tests. According to the Dobbs majority opinion, the Court in Roe “did not claim that American law or the common law had ever recognized [a right to abortion],” and the opinion was more legislative than judicial. Nothing in the text of the Constitution itself supported the conclusion that the federal government had authority to restrict the states in their regulation of abortion.

 Because the Constitution is silent on the issue of abortion, the authority to regulate abortion is properly returned to the people and their elected representatives in the states. Justice Kagan’s accusation does not hold up—textualism does not mean reading new rights into constitutional or statutory silence. And when an opinion diverges from the text, it is up to the Court to correct that decision. As Justice Clarence Thomas noted in his Dobbs concurrence, the Court “ha[s] a duty to ‘correct the error’ established” in other substantive due process cases (those that deal with unenumerated rights) and reconsider whether the rights at issue there are supported by constitutional text such as the Fourteenth Amendment’s privileges or immunities clause. Major Questions In West Virginia v. EPA, the Court considered the scope of the EPA’s regulatory reach as authorized under the text of the Clean Air Act, concluding that Congress did not grant the agency the authority to regulate national energy policy by issuing significant rules governing emissions caps.

The Court’s opinion describes the type of authority the agency purported to have as implicating a major question of policy. After analyzing the text, history and precedent, the Court found that a “clear statement” from Congress was required when an executive agency claims widespread authority to effectuate major policy changes. The premise of this major questions doctrine is that Congress must clearly articulate the parameters of large grants of authority to agencies because of the lack of checks and balances once those agencies are empowered. This idea of requiring Congress to specifically define agency authority is not new. Then-Judge Brett Kavanaugh explained in his dissent from the D.C. Circuit case U.S. Telecom Assocation v. FCC (2017) that “Congress must clearly authorize an agency to issue a major rule.” And as Justice Antonin Scalia explained in Whitman v. American Trucking Associations (2001), Congress does not fundamentally alter regulatory schemes through “vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” Again, Justice Kagan’s accusation of using a special new method of interpreting statutes does not hold up. Put simply, as Justice Felix Frankfurter would have advised: “Read the statute, read the statute, read the statute!” In West Virginia v. EPA, the agency’s self-proclaimed authority was nowhere to be found in the legislative text. If an agency is to issue major rules, Congress must give it explicit permission to do so. 
 The Court has recently addressed other precedents and rules created without a clear textual basis. For example, Justice Neil Gorsuch brought clarity to a decades-long mess of establishment clause jurisprudence in Kennedy v. Bremerton School District, which held that the First Amendment protects an individual engaging in a personal religious observance from government reprisal. Writing for the majority, Justice Gorsuch rejected the long-standing but faulty standard for church-state separation, a phrase that is not found in the Constitution. Prohibitions on state endorsement of and entanglement with a specific religion were not intended to be prohibitions on religious freedom—it was coercion and compulsion that the Founders feared, as reflected in the First Amendment. By shelving this ahistorical approach, the Kennedy v. Bremerton School District decision liberates the free exercise clause from the judge-created theory of separation of church and state. Again, the Court returned to the text of the Constitution. Politically Motivated Decision-Making? Given the abundance of attention on the Court’s recent decisions, and the multitude of elected officials denouncing the Supreme Court as extreme and ideologically motivated, it is worth noting that textualism does not support solely politically conservative positions.
In Biden v. Texas, for example, the Court analyzed the Immigration and Nationality Act and held that the Biden administration has authority to end the Remain in Mexico policy put in place by the Trump administration. And who could forget that Justice Gorsuch reached the majority decision in Bostock v. Clayton County through a textualist approach that many argue did not consider the original intentions of the 1964 Congress that passed the Civil Rights Act? Bostock is a prime example of how using the same text-based interpretive approach can result in divergent conclusions. Gorsuch’s majority opinion explained that the express terms of the statute required a finding that homosexuality and transgender status are protected by Title VII’s prohibition of discrimination based on “sex” because it treats individuals differently “for traits or actions it would not have questioned in members of a different sex.” The Court noted that “the limits of the drafters’ imagination supply no reason to ignore the law’s demands.” By contrast, in his dissent, Justice Alito framed the issue before the Court as whether Congress included a prohibition on discrimination based on sexual orientation or gender identity at the time the Civil Rights Act was passed. A textualist approach should involve this degree of context to avoid the trap of a court interpreting a law based on changed circumstances or current public opinion—a role properly reserved to the democratically accountable political branches. Characterizations of the Supreme Court’s recent decisions as partisan or anti-democratic are prompted by the political branches of government and their supportive media.
Yet, in these recent decisions, the Supreme Court refrains from the results-oriented decision-making to which the Court’s critics have grown accustomed and which they would prefer.  As Justice Breyer noted in his 2021 book “The Authority of the Court and the Peril of Politics,” “It is only through [journalists’] reporting that the vast majority of Americans learns just what courts [do].” Accurate reporting of consequential decisions is crucial to fostering respect for the law, and it is important to show these overall trends of stable, predictable decision-making to clarify that the Court is restoring itself to its proper, limited role. 
Article first appeared in the Discourse Magazine by Committee for Justice Legal Fellow Evelyn Johns:
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