Is Textualism at War with Statutory Precedent?

Abstract

Scholars have long assumed that textualism is at odds with statutory precedent. Thus, when the Court in Bostock v. Clayton County relied on precedent in determining that Title VII protects gay, lesbian, and transgender individuals, many critics responded that the opinion was not true textualism. This Article challenges this longstanding assumption about textualism and precedent. By offering a novel typology of statutory precedent, the Article demonstrates that textualism is quite compatible with important uses of precedent. Prominent textualists have turned to what this Article calls the first category of statutory precedent—reliance on Supreme Court cases to define the meaning of terms and phrases—in determining the plain meaning of laws. The Article further argues that this use of precedent is defensible on textualist principles. The Article then identifies a second and a third category of precedent—past statutory holdings and implementation tests, as well as efforts to preserve consistency in an area of law—that become relevant for textualists when they conclude that there is no plain meaning. This Article not only complicates assumptions about the relationship between textualism and statutory precedent but also has important implications for our understanding of the interpretive enterprise. First, textualists’ reliance on statutory precedent to define the meaning of statutory terms and phrases indicates, contrary to the assumption of many scholars, that textualists do not simply seek out the meaning that lay people would ascribe to certain words. Second, and relatedly, this analysis also upends assumptions that plain meaning analysis is primarily a linguistic and empirical inquiry. For many textualists, the effort to identify the meaning of a federal statute is a legal and normative, not simply a linguistic, exercise.