Literalism in Statutory Interpretation: What Is It and What Is Wrong with It?

Abstract

In two recent decisions — Bostock v. Clayton County and Niz-Chavez v. Garland — a majority of the Supreme Court claimed to apply a textualist approach to statutory interpretation, and a dissent charged the majority with applying “literalism” instead. But what is literalism and what, if anything, is wrong with it? This Essay borrows a few ideas from the philosophy of language to try to pin down a more precise sense in which the majority opinions in Bostock and Niz-Chavez were arguably literalistic. The opinions may have been literalistic in the sense that they failed to consider how context pragmatically enriched what the relevant statutes asserted by fixing the operative sense of a polysemous word. If that is right, then one problem with such a literalist approach is that it pushes controversial interpretive choices underground rather than giving a linguistic (or any other sort of) argument for those choices.

Keywords: textualism, literalism, statutory interpretation, pragmatic enrichment, Bostock v. Clayton County, Niz-Chavez v. Garland