Abstract
Modern textualism, as the dominant interpretive philosophy of the U.S. Supreme Court, has increasingly exhibited internal inconsistencies that undermine its foundational principles. This paper examines the evolution of textualism from Justice Antonin Scalia’s foundational framework to its fragmented contemporary application under the current court, divided into the camps of Justices Neil Gorsuch and Brett Kavanaugh. Through an analysis of three landmark cases—District of Columbia v. Heller, Bostock v. Clayton County, and Niz-Chavez v. Garland—this study highlights the divergence between literalist and pragmatic textualism, revealing how both approaches often fail to provide coherent or consistent legal interpretations. The paper critiques the shortcomings of rigid literalism, which isolates statutory language from historical and legislative context, leading to judicial outcomes that stray from true textualist intent. Further, it argues for a transition toward a contextualist approach that preserves textualism’s focus on the written word while integrating historical, linguistic, and practical considerations. By emphasizing the necessity of contextual analysis in statutory interpretation, this paper advocates for a more methodologically sound and jurisprudentially stable approach that aligns legal interpretation with the reasonable understanding of laws at the time of their enactment.
Introduction
Textualism has become the cornerstone of the Supreme Court's statutory and constitutional interpretation philosophy., The movement to modern textualism was led by former Supreme Court Justice, the late Antonin Scalia. In a lecture at Harvard Law School in November 2015, Justice Elena Kagan announced, “I think we’re all textualists now in a way that just was not remotely true when Justice Scalia joined the bench.” This current textualist reign over the court is reflected in Justice Neil Gorsuch’s majority opinion in Bostock vs Clayton County, “This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the President.” Justice Gorsuch has been anointed Scalia’s heir by many legal scholars due to his fervent belief in textualist ideals. In this Gorsuch court, however, we have seen a fraying in rulings among the textualist “conservatives”, which has resulted in a split into two groups: ideological literalists and pragmatic textualists. Justice Gorsuch has been on the side of literalism in two impactful cases, Bostock v Clayton County and Niz-Chavez v Garland. Ironically, it is Justice Scalia who disavowed this approach in his book “A Matter of Interpretation”, saying, “a good textualist is not a literalist.” In order to highlight and analyze the shortcomings of modern textualism, this paper will review three cases: one authored by Justice Scalia (District of Columbia v. Heller) and two post-Scalia cases involving Justices Gorsuch and Kavanaugh (Bostock v. Clayton County and Niz-Chavez v. Garland). Further, this paper will make the case for a transition to a revised form of textualism that addresses these flaws and incorporates contextual considerations.”
Defining Textualism
Textualism is a method of statutory and constitutional interpretation focusing on the plain meaning of the legal text that is being interpreted, without considering the intent of the legislature, the statutory purpose, or the legislative history surrounding the text. Textualism aims to use the ordinary meaning of words at the time of the legislation’s writing. In a perfect world, this would virtually eliminate judicial biases, and avoid the guessing game that comes with an original intent approach. The proponents of textualism, so characterized, allege that the constitution and its amendments are an established set of rights, not to be altered to fit the cultural desires and norms that the public would ideally see protected. For the latter, there is the process of amendment. Unfortunately, a flaw in this trans-centurial translation game lies in the challenge of establishing a base meaning. A common occurrence in attempts at judicial interpretation that carry the title of “textualism” is a search by the Justices for meanings that coincide with their previous understanding of or desire for the meaning of the text. Plain meaning is underdetermined by the text itself, with latitude being granted to the Justices in selecting the texts that purport to sample linguistic usage in a historical context. There are two further sub-branches of textualist philosophy that this paper will address, namely literalism and pragmatism. Both are practiced when there is significant ambiguity in the text, preventing a purely textualist approach.
Literalism is a form of statutory interpretation that attempts to find and use the plain meaning of the language of the statute, and uses that as the primary method of interpretation. Essentially, literalism looks at the lexical meaning of the words, with the goal of minimizing the use of context and logic to determine the result. Pragmatism employs a more logical approach. It looks more so at the ordinary meaning of the text at the time of writing and how a reasonable reader would understand it. Pragmatism considers the text in context, observing the application of phrases and words in other statutes and attempting to view the statute holistically, expanding the scope of interpretation beyond the words that are ambiguous. Pragmatism also allows for giving weight to practical implications, thinking through the impact of the decision and the burden on the parties that would come from it. We have seen the Supreme Court’s “textualists” split into two camps on this issue, and of the conservatives, three are literalists and three are pragmatists.
Scalia’s Textualism in District of Columbia vs Heller
District of Columbia v. Heller was a 2008 Supreme Court case that addressed the meaning of the Second Amendment in the context of individual gun ownership. At issue was a Washington, D.C. law that effectively banned handgun possession in the home, which was challenged by a D.C. special police officer, Dick Heller. In a 5-4 decision, the Court ruled that the Second Amendment protects an individual’s right to keep and bear arms for self-defense, striking down the city's firearm regulations as unconstitutional. Justice Scalia wrote the majority opinion and Justice Stevens wrote for the dissent. The case was decided on the interpretation of the text of the Second Amendment, which reads as follows: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The debate in Heller revolves around the interpretation of the Second Amendment, more specifically the phrases “well-regulated militia” and “right of the people to keep and bear arms.” Justice Scalia opens by defining the textualist scope to be used in his decision, “In interpreting this text, we are guided by the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.’” He continues to redefine the amendment to fit his interpretation, writing, “The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, ‘Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.’” This redefinition allows for a specified framing of his argument, one that attempts to shift the emphasis away from a military context.
Scalia’s analysis of the operative clause, “right of the people to keep and bear arms,” is rather shallow and focuses on critiquing the dissent's interpretation. In an article in the Journal of Pragmatics, legal linguist Pamela Hobbs analyzes the lack of linguistic support for Scalia’s claims:
the majority of his [Scalia’s] analysis is cursory and pro forma, and serves mainly to shift the inquiry from the contextual meaning of the amendment's language to the possible meanings of its words. He then launches an extensive exegesis of the meaning of the term ‘bear arms’, and argues in favor of his own selected meaning. However, he does not support his own interpretation but instead criticizes the interpretation of the District of Columbia and the dissent.
Hobbs’ analysis bears similarity to that of other legal scholars who commented on Heller, and points to an issue of the freedom of justices to craft an argument based on their ideology. When viewing Heller in context, it is evident that there is significant ambiguity in the selected interpretations used by the majority, something that Scalia fails to fully address in his majority opinion; rather, he chooses to criticize the dissent heavily.
In Heller, due to the various ambiguities in the text of the Second Amendment, scholars were welcomed by the court to submit a brief providing expert analysis of the linguistic background of the text. The dissent, written by Justice Stevens, uses an approach rooted in context and understanding. This approach still attempts to construe the plain, original meaning of the amendment. Stevens writes:
The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidence the slightest interest in limiting any legislature's authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.
Justice Stevens’s dissent frames the prefatory clause as not just defining purpose, but providing crucial context for understanding the operative clause and its definition in the text. He writes:
the clear statement of purpose announced in the Amendment's preamble...confirms that the Founders’ singleminded focus in crafting the constitutional guarantee ‘‘to keep and bear arms’’ was on military uses of firearms, which they viewed in the context of service in state militias. The preamble thus both sets forth the object of the Amendment and informs the meaning of the remainder of its text. Such text should not be treated as mere surplusage, for ‘‘[i]t cannot be presumed that any clause in the constitution is intended to be without effect.’’
Stevens' analysis contrasts with Scalia's ideological and literal approach, pointing to a method of statutory interpretation that takes into account context to better reconstruct the original meaning, which, after all, is the goal of both methods.
Post-Scalia Textualism in Bostock v. Clayton County
A notable example of a clash between a supposedly textualist methodology and the interpretation of an amendment is Bostock v. Clayton County. In the case, the majority, consisting of three liberal and three conservative justices, ruled that firings or other retaliatory work measures against persons identifying as transgender or gay fell under the sex protection of Title VII. The statutory ambiguities of the case centered around whether the protections of sex applied to gender and sexual orientation. The majority opinion in Bostock was written by Justice Neil Gorsuch, who reaffirmed the strong textualist scope of the court with this opening remark, “This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the President.” Gorsuch’s opening sets a high bar for his opinion, creating an expectation for a purely textualist reading. He begins by reviewing the text of Title VII of the Civil Rights Act of 1964, which is as follows:
Title VII makes it unlawful for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
Gorsuch here quickly sets aside the plain meaning of the term “sex,” settling for the then-accurate usage of “sex” to mean, “status as either male or female [as] determined by reproductive biology.”, Gorsuch narrows in not just on what sex means here, but what Title VII says about it, as the title prevents employers from taking discriminatory actions “‘because of’ sex.”, He continues by defining discrimination in this statute as “differentially unfavorable treatment, and more exactly, worse treatment as compared to others,” which is a logical definition., These assertions combined could yield one of two conclusions with regard to the decision:
INTERPRETATION 1. It is unlawful for an employer to treat an individual disadvantageously if the employer would not have done so but for the individual being male or female.
INTERPRETATION 2. It is unlawful for an employer to take any adverse action against an individual that, either intentionally or unintentionally, disadvantages females relative to males or vice versa.
The former is employed by Gorsuch in the majority, where he held that the but-for test should be applied in this statute, namely, to determine if a particular result (ie hiring/firing) would still occur if not for the individual's gender. The latter matches the dissent of Alito closely and appears more accurate when looking at this statute in context: an era where women were still fighting for equal rights in the second wave of feminism., In his majority opinion, Gorsuch writes:
It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.
Frankly, while this conclusion could be logical if the law was authored in the 2010s or 20s, understanding the context, both in the statute and in terms of plain language at the time, is essential to correctly applying a textualist interpretation. As Berman and Krishnamurthi write:
If your friend is fired because she’s a woman, the natural thing to say is that she was fired because of her sex. But it would be odd to describe somebody who’s been fired because she’s gay or transgender as having been discriminated against because of their sex. “If every single living American had been surveyed in 1964,” he (Alito) further argued, “it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation— not to mention gender identity, a concept that was essentially unknown at the time.”
It is challenging to frame Gorsuch’s majority opinion as one that truly employs the principles of classical textualism. Rather, it seems to be an opinion of partially literalistic support, largely ignoring the context in which the law was written, and the plain meaning of the words in question in the 1960s. The literalism lies in the “because of [...] sex” aspect of the decision; it solely interprets using the text, applying the “but for” methodology, and ignores all contextual aspects, writing “Only the written word is the law, and all persons are entitled to its benefit”. This literalism clashes with fundamental principles of theoretical textualism, but attempts to cloak itself in the mantle of textualism, while not addressing the context in which the act was written—which should always at least be a consideration.
The essential question being asked in this case is whether discrimination on the basis of sexual orientation is included in the protections against sexual discrimination. According to textualist principles of plain meaning, it is not. The state of the plain meaning at the time is laid out well by Lindevaldsen, where she places the message of the dissent in context:
Homosexuality was listed as a mental disorder in the Diagnostic and Statistical Manual until 1973 and sodomy was a crime in every state except Illinois. “The term ‘transgender’ is said to have been coined “in the early 1970s” and the term ‘gender identity’ […] first appeared in an academic article in 1964.” In 1969, just five years after Title VII was enacted, “the great majority of physicians surveyed […] thought that an individual who sought sex reassignment surgery was either ‘severely neurotic’ or ‘psychotic.’”
This is not to say that the Bostock majority carried the incorrect result. In fact, legal scholars have recognized pathways to a decision that has the same practical ramifications, but that relies on well-established jurisprudence and a more pragmatic approach. Justice Gorsuch simply applied an overly literalistic interpretation, one that violates many foundational concepts in textualism., Justice Alito paints Justice Gorsuch’s opinion here as one not befitting Gorsuch’s title as successor to Scalia, writing, “The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society.”
In Bostock, we see Gorsuch’s majority opinion, the dissent by Justice Alito, and the dissent by Justice Kavanaugh all claiming the textualist mantle of Justice Scalia. Due to the nature of textualist interpretation, there are bound to be differing opinions on how to interpret statutes under the name of textualism. The courts seem to be at a crossroads with regard to textualism, and the branches of this ideology are further divided. This splitting from textualism can be observed in the literalistic approaches, pragmatic approaches, and idealistic approaches that pave the path to a decision based on the Justice’s worldview. In fact, in Bostock, Justice Alito criticizes the practice of cherry-picking definitions in decisions that have a textualist basis, with this ironically occurring in Heller, in which Alito sided with Scalia., Literalism and judicial deference in interpretation have unfortunately become commonplace in key Supreme Court decisions, raising the question of whether change is needed.
Post-Scalia Textualism II in Niz-Chavez v. Garland
Another case that exemplifies the variance in textualist interpretation of this court is Niz-Chavez v. Garland. In this case, the US Department of Homeland Security began deportation proceedings against Agusto Niz-Chavez, a noncitizen residing in the United States without legal status. In accordance with the Illegal Immigration Reform and Immigrant Responsibility Act and the Immigration and Nationality Act, DHS served Mr. Niz-Chavez with a Notice to Appear (in deportation proceedings), which stops the ten-year clock on a noncitizen's (such as Mr. Niz-Chavez) presence in the US. This process is put well in the syllabus of Niz-Chavez v. Garland: “Nonpermanent resident aliens ordered removed from the United States under federal immigration law may be eligible for discretionary relief if, among other things, they can establish their continuous presence in the country for at least 10 years.” The details of the stop-time rule are also clearly delineated in the syllabus:
The stop-time rule included in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) provides that the period of continuous presence “shall be deemed to end . . . when the alien is served a notice to appear” in a removal proceeding under §1229a. The term “notice to appear” is defined as “written notice . . . specifying” certain information, such as the charges against the alien and the time and place at which the removal proceedings will be held.
The key question of textual interpretation in this case pertains to the phrase “is served a notice to appear.” More specifically, whether the written notice is to be delivered as “a notice” in the singular, as in a single document, or whether the notice can be delivered in installments or multiple documents, still constituting the same notice. In his majority opinion, Justice Gorsuch writes: “To trigger the stop-time rule, the government must serve “a” notice containing all the information Congress has specified. To an ordinary reader—both in 1996 and today—’a’ notice would seem to suggest just that: ‘a’ single document containing the required information, not a mishmash of pieces with some assembly required.” While this interpretation has some flaws that have been explored by legal scholars, it is ultimately quite literal., On the following page, Gorsuch employs a rather contrary method to justify his conclusion, writing: “If IIRIRA had meant to endow the government with the flexibility it supposes, we would have expected the law to use “notice” in its noncountable sense.
A statute like that would have said the stop-time rule applies after the government provides “notice” (or perhaps “sufficient notice”) of the mandated information—indicating an indifference about whether notice should come all at once or by installment.” It is notable that Gorsuch enacts both literalism and original intent in this decision, with both being quite antithetical to Scalia’s textualist principles. It is not the court’s responsibility to attempt to interpret the statute as if they were legislators authoring it. Rather, when employing a textualist methodology, the court should identify the plain meaning of the statute at the time. The dissent, written by Justice Kavanaugh, makes a—more pragmatic, but still textualist—case for “a notice” referring to the whole notice, not a single document:
In other words, the statute provides that the 10-year continuous-presence clock stops upon service of “a notice to appear,” and then goes on to define a notice to appear as “written notice.” The statute nowhere says that written notice must be provided in a single document. Rather, the statute lists three essential requirements for the Government to notify a noncitizen of removal proceedings [...] But the Court today nonetheless imposes a fourth, atextual single-document requirement for the notice to stop the 10-year clock.
Justice Kavanaugh goes on to address the context here, especially with regard to the majority’s emphasis on the punctuation surrounding “notice to appear” and the original intent argument made by Gorsuch.
According to the Court, Congress thus imposed a single document requirement for stopping the 10-year clock not by actually saying that a single document is required, but rather by placing quotation marks around the words a “notice to appear” rather than “a notice to appear” in the statutory definition. There is a good reason that Niz-Chavez did not raise this argument, that no amicus brief advanced this argument, and that no court has adopted it. The Court’s theory is mistaken and implausible. If Congress wanted to require a single document in order to stop the 10-year clock, it is hard to imagine a more obscure way of doing so.
Justice Kavanaugh's pragmatism when approaching this topic is notable in this era of a semi-failed strict, when convenient, textualist philosophy employed by the Supreme Court. It is hard to see how Justice Gorsuch’s opinion abides by the rules of textualism, or even just reasonable interpretation, given the über-literal view he takes. Niz-Chavez, like Bostock, sees a fragmenting of textualist ideology: traditional literalist and ideology-based textualism contrasting with pragmatic, and contextualist, interpretation in textualism.
Conclusion: The Case for Contextualism
The inconsistency in applying textualism as a judicial philosophy is evident in the Supreme Court decisions analyzed above. From Justice Scalia’s approach in District of Columbia v. Heller to Justice Gorsuch’s applications in Bostock v. Clayton County and Niz-Chavez v. Garland, the Court has struggled to maintain philosophical coherence, with both majority opinions and dissents in Bostock and Niz-Chavez relying on textualist methodology. It seems that especially in the cases reviewed in this paper, literalism and pragmatic textualism have diverged into distinct branches, leading to fractured interpretations.
While textualism seeks to uphold the ordinary meaning of legal texts, its practical application has often betrayed its theoretical principles. Literalism, as seen in Justice Gorsuch’s opinions, isolates words and phrases, neglecting their context and yielding results misaligned with the statutory or constitutional framework. In Bostock, Gorsuch’s reliance on the “but-for” test for discrimination under Title VII ignored the historical understanding of the statute's protections. Similarly, in Niz-Chavez, his rigid interpretation of “a” notice to appear prioritized a singular document requirement over the broader legislative intent of the stop-time rule. These cases highlight how overly narrow textual interpretations risk misrepresenting the ordinary meaning of statutes. Even Justice Scalia, a staunch textualist, famously noted that “a good textualist is not a literalist.” Yet, the Court’s current applications reflect a departure from this foundational principle, leading to outcomes criticized as ideologically driven or excessively formalistic.
To address these fissures, it is essential to integrate context into textual interpretation. Contextualism offers a framework that respects textualism’s emphasis on the written word and ordinary meaning while situating it within its broader legal, historical, and lexical context. This approach avoids the flaws of literalism by considering not only the plain meaning of words at the time of enactment but also the purpose, structure, and circumstances surrounding the text.
Progressive Textualism is apt in its identification of the limitations of current textualist practices. Kevin Tobia and his co-authors criticize modern textualism as “methodologically regressive,” crafting a fictional "ordinary person" whose understanding aligns more with ideological goals of the justices than with actual linguistic comprehension. They emphasize that interpreting words and phrases in isolation, without regard to broader contextual evidence, is a critical error. As Tobia states:
“It is a mistake to interpret words and phrases in isolation without regard to broader contextual evidence. Contextual evidence is the basis from which an ordinary reader understands a text.”
This broader understanding of context is vital for aligning statutory interpretation with the reasonable reader's perspective at the time of a law’s enactment. For example, in Heller, Justice Stevens’s dissent exemplified contextualism by framing the Second Amendment’s prefatory clause as integral to understanding its operative clause. His approach recognized that the clause informed the broader meaning of the amendment, emphasizing its historical connection to militia service. This pragmatic, context-aware analysis contrasted sharply with Justice Scalia’s majority opinion, which selectively reshaped the text to support a narrower ideological narrative.
By incorporating a deeper awareness of linguistic, historical, and practical dimensions, contextualism strengthens judicial interpretations, ensuring they remain faithful to the text while addressing ambiguities meaningfully. Tobia et al. argue that current textualism often sacrifices linguistic precision for ideological objectives. By embracing contextualism, the Court can correct this tendency and adopt a more holistic and reliable interpretive methodology.
The transition from modern textualism to contextualism is not a rejection of textualism’s merits but rather a much needed evolution. A contextualist approach respects the text while accounting for the circumstances of its creation, ensuring judicial interpretations are grounded in both conformity to the law and an understanding of its practical application. Contextualism does not reject textualism; rather, it enhances it.
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