« Additional Thoughts on Impeachment, Disqualification and Former Presidents
David Weisberg
| Main | Convicting Former Presidents
John Vlahoplus »

01/16/2021

Anita Krishnakumar on Tara Grove on Textualism
Michael Ramsey

At Jotwell, Anita Krishnakumar: The Multiple Faces of Textualism (discussing  Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev265 (2020)).  From the introduction:

In her wonderfully-titled article, Which Textualism?, Tara Leigh Grove uses the recently decided Bostock v. Clayton County case to highlight a truth about statutory interpretation theory that scholars have largely ignored: Textualism is not a monolithic interpretive approach, but one that contains multiple competing strands. This observation is long overdue, and Bostock is an excellent vehicle for exploring its implications, given that the three separate opinions issued by the Court all claimed to employ a textualist interpretive approach—while reaching different outcomes.

Which Textualism? begins by differentiating between what Grove calls “formalistic textualism,” on the one hand, and “flexible textualism,” on the other—and uses this frame to discuss “some real, but underappreciated, disputes among textualists” regarding the universe of interpretive tools and resources courts should avail themselves of when interpreting statutes. Specifically, Grove argues that “formalistic textualism” authorizes interpreters to apply only a “closed set” of normative canons, whereas “flexible textualism” allows interpreters to consult a much wider range of canons, such as the absurdity doctrine, that invite considerable judicial discretion.

In Bostock, Grove contends that Justice Gorsuch’s majority opinion exemplified “formalistic textualism” because it focused intently on the statutory term “because of sex” and what that term means in the context of sexual orientation-based discrimination. By contrast, Grove characterizes both Bostock dissenting opinions as engaging in “flexible textualism”—because the dissents relied on atextual considerations including public views about homosexuality in 1964, other statutes enacted after Title VII, and the “far-reaching” consequences of construing Title VII to cover discrimination based on sexual orientation.