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07/14/2017

Textualism from Justice Elena Kagan
Michael Ramsey

Jonathan R. Nash at The Hill: Justice Kagan Channels Scalia in Textualist Supreme Court Opinion. From the introduction:

A fair amount of attention has focused on the first opinion — in the case of Henson v. Santander Consumer USA — authored by newly-minted Supreme Court Justice Neil Gorsuch.

But the Court’s opinion in another case decided in June — Advocate Health Care Network v. Stapleton, an opinion arising under the federal Employee Retirement Income Security Act (“ERISA”) statute — is also worthy of some attention.

As in Henson, the opinion in Advocate Health Care Network was for a unanimous Court (although Justice Gorsuch did not participate in the latter case). Like Justice Neil Gorsuch’s opinion in Henson, the opinion in Advocate Health Care Network was heavily textualist, emphasizing the importance of following the words Congress used in drafting a statute rather than speculating what Congress might have wanted to do if confronted with the facts now before the Court.

What is surprising is that the Advocate Health Care Network opinion was authored by Justice Elena Kagan, an appointee of President Barack Obama. While Kagan has exhibited a penchant for textualism over the years, this opinion is a tour de force in textualist interpretive technique.