High court’s conservative justices stick to the script
Textualism, the mantra of the late Justice Antonin Scalia, is thriving this term at the U.S. Supreme Court, where its newest member, Neil Gorsuch, follows the letter of the law in deciding cases.
WASHINGTON – Conservatives are controlling most of the Supreme Court’s closely divided cases so far this term by sticking to the words written by Congress.
The justices have settled challenges involving the rights of workers, immigrants, prisoners and patent owners by painstakingly defining the meaning of “for,” “shall,” “any” and “other,” along with “satisfy” and “salesman.”
The result has been a series of 5-4 decisions written by justices Neil Gorsuch, Clarence Thomas and Samuel Alito that rely on “textualism” — letting the statutes under review speak for themselves. It’s what the late justice Antonin Scalia preached and what President Trump promised he would seek in choosing Gorsuch as Scalia’s successor.
“Since the court lost the foremost textualist in its history, you’d just naturally expect that it would have become a little less textualist. And that just doesn’t seem true,” says former U.S. solicitor general Paul Clement, who has argued more than 90 cases at the Supreme Court.
“The terms of the debate have shifted,” Clement says. “You don’t want to walk into the court without a textualist argument.”
This is what Gorsuch, the newest justice now entering his second year on the court, promised during his Senate confirmation in 2017 — to “try to understand what the words on the page mean, not import words that come from us.”
“If the words are plain, you stop,” Gorsuch said.
Thus it was last week, when Gorsuch refused to read into the National Labor Relations Act any rules for handling legal disputes under the Federal Arbitration Act. Gorsuch’s opinion for the court held that employers can insist that workers settle labor disputes individually through arbitration.
“This court is not free to substitute its preferred economic policies for those chosen by the people’s repre-
sentatives,” he wrote.
Justice Ruth Bader Ginsburg led the liberals’ dissent, noting that the NLRA guarantees workers the right to unionize, bargain collectively and “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
The dispute boiled down to the word “other” — Gorsuch declaring it must be related to union membership or collective bargaining, Ginsburg contending the law “speaks more embracively.”
The court was similarly word-bound in another 5-4 decision written by Gorsuch last month that said an administrative board created to review patents cannot pick and choose which parts of a patent to review. The law passed by Congress “is both mandatory and comprehensive,” Gorsuch said. “The word ‘shall’ generally imposes a nondiscretionary duty. And the word ‘any’ naturally carries ‘an expansive meaning.’ It means the board must address every claim the petitioner has challenged.”
In February, Gorsuch’s 5-4 opinion held that lower court judges cannot limit a prisoner’s contribution to attorney fees.
Supreme Court experts say Gorsuch’s addition has merely returned the court to Scalia’s brand of textualism.
“The court is no more textualist than it was when Scalia was on the court,” says Irving Gornstein, executive director of the Supreme Court Institute at Georgetown University Law Center. “The only thing that has changed is that one textualist has been replaced by another.”
But Jeffrey Fisher, co-director of the Stanford Law School Supreme Court Litigation Clinic, says Gorsuch “seems to be trying to put some fresh wind in the sails of textualism. And it seems he’s having some success.”
Alito and Thomas also stuck to the letter of the law in recent 5-4 rulings. Alito ruled that illegal immigrants can be detained indefinitely while their cases are reviewed.
“Nothing in the statutory text imposes any limit on the length of detention,” he said, nor does it say “anything whatsoever about bond hearings.”
Justice Stephen Breyer argued for the court’s four liberal justices that such a law would be unconstitutional and should therefore be reinterpreted. Rather than focus only on the words, he said, the court should consider “the relevant constitutional language, purposes, history, traditions, context and case law.”
Elizabeth Wydra, president of the liberal Constitutional Accountability Center, says conservatives often accuse liberals of reading into statutes what they want them to say.
The court’s conservatives, Wydra says, also are guilty of that. “There’s going to be a battle about what is actual textualism,” she says. “And the liberals aren’t giving up that fight.”
“There’s going to be a battle about what is actual textualism.” Elizabeth Wydra Constitutional Accountability Center president