Supreme Court Litigators in the Age of Textualism

44 Pages Posted: 30 Jan 2023 Last revised: 21 Mar 2024

Date Written: January 31, 2024

Abstract

The Supreme Court’s approach to statutory interpretation has moved in a textualist direction over the last several decades, but there is little systematic information on how litigators’ briefing practices have changed during this era of textualist ascendancy. This Article examines thirty-five years’ worth of party briefs (over 8,000 briefs total), explores the briefs’ use of interpretive tools (including differences across categories of attorneys), and compares the briefs to the Court’s opinions.

This examination yields several valuable findings. Although the briefs show a textualist shift, they differ from the Court’s opinions in a few ways. The magnitude of the textualist shift is smaller in the briefs than in the opinions, as legislative history remains an important force in briefs (especially those of the Solicitor General) despite decades of criticism from judicial textualists and steep declines in the Court’s use of that tool. The briefs instead reflect the rise of textualism through the supplementation of legislative history with characteristically textualist tools and a shift in which tools the briefs emphasize. Disaggregating different types of litigators shows that, although there is some evidence that elite litigators responded more quickly to changes in the Court’s practices, elites and nonelites have today come to resemble each other in their interpretive styles.

The findings contribute to our understanding of the Court’s informational environment and reveal a divergence between the Court’s pro-textualist rhetoric and the more pluralistic practices of litigators. This divergence may serve the Court’s informational needs better than a world in which the practicing bar emulated the Court’s text- and dictionary-dominated opinions.

Keywords: statutory interpretation, legislation, supreme court, attorneys, lawyering, textualism

Suggested Citation

Bruhl, Aaron-Andrew P., Supreme Court Litigators in the Age of Textualism (January 31, 2024). 76 Florida Law Review 59 (2024), William & Mary Law School Research Paper No. Forthcoming, Available at SSRN: https://ssrn.com/abstract=4339838 or http://dx.doi.org/10.2139/ssrn.4339838

Aaron-Andrew P. Bruhl (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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