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The Irrelevance of Sanchez to Textualism’s Indeterminacy
John Vlahoplus

In a recent post here, Michael Ramsey suggests that textualism can function in at least some cases as a “neutral truthmaker” generating definite answers because nine ideologically diverse Justices reached the same legal interpretation in Sanchez v. Mayorkas through examining the relevant statutory text.  But the case proves nothing of the sort.  Two lower courts reached opposite conclusions, also applying textualism.  The Velasquez court, for example, found that “the government’s argument conflicts with the INA’s text.”  Sanchez merely adds nine votes to one side of the interpretive dispute without proving that textualism is neutral or deterministic.

The recent faithless elector cases are similar.  The Tenth Circuit concluded in Baca that “the text of the Constitution makes clear that states do not have the constitutional authority to interfere with presidential electors who exercise their constitutional right to vote for the President and Vice President candidates of their choice.”  But the nine ideologically diverse Supreme Court Justices rejected that textual conclusion. 

The eight-Justice majority reached the opposite result:  “The Constitution’s text and the Nation’s history both support allowing a State to enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice—for President.”  Justice Thomas found no textual clarity at all.  He concluded that “[t]he Constitution does not address—expressly or by necessary implication—whether States have the power to require that Presidential electors vote for the candidates chosen by the people.”  Analytically, the Court’s decision merely added nine votes to the opposite side of the interpretive dispute.  It did not prove that textualism is neutral or determinative.

The Supreme Court has the final word because someone has to, not because the Court can prove that it has applied a neutral and deterministic method of interpretation correctly where others applied it incorrectly.