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08/18/2020

Tara Leigh Grove: Which Textualism?
Michael Ramsey

Tara Leigh Grove (University of Alabama School of Law) has posted Which Textualism? (134 Harv. L. Rev. __ (forthcoming 2020)) (36 pages) on SSRN.  Here is the abstract: 

Scholars of interpretive theory have long engaged with the battle between textualism and purposivism. But this emphasis has obscured important divisions within textualism—divisions that were on full display in the Supreme Court’s recent decision in Bostock v. Clayton County. In holding that Title VII’s prohibition on sex discrimination bars the disparate treatment of gay, lesbian, and transgender individuals, the Court applied what this Comment calls “formalistic textualism”—an approach that instructs interpreters to carefully parse the statutory text, focusing on semantic context and downplaying other concerns. But the dissenting opinions responded with their own brand of textualism. The dissents’ more “flexible textualism” allows interpreters to make sense of a statutory text by looking at social context and practical consequences. This Comment explores these competing textualisms and—drawing on principles of judicial legitimacy—offers a theoretical case for preferring the formalistic version. But whether or not one accepts that bottom line, interpretive theorists should begin to explore the fact that judges apply not simply textualism, but textualisms.

Agreed, and I think a fair criticism of Justice Scalia is that he was not entirely consistent in which textualism he was applying.