That’s the headline of a new piece of mine in the Atlantic. It focuses on the oral argument before the Fifth Circuit in Texas v. United States, and the apparent willingness of two Republican-appointed judges to entertain seriously the notion of invalidating the entire ACA.
How did it come to this? What the hell is going on?
The explanation is rooted, I think, in a sort of Know-Nothingism that’s taken hold in some corners of the conservative legal movement. This Know-Nothingism is a cancerous outgrowth of textualism, a method of statutory interpretation to which most Republican-appointed judges now subscribe.
Though I have my quarrels with textualism, its key insight is correct: close attention to statutory text really is the best way to discern a law’s meaning. As sophisticated textualists understand, however, reading the text doesn’t mean we must ignore what Congress meant to accomplish. To the contrary, as Caleb Nelson (himself a textualist) has explained, “judges whom we think of as textualists construct their sense of objective meaning from what the evidence that they are willing to consider tells them about the subjective intent of the enacting legislature.”
Yes, staunch textualists resist calls to use legislative history—statements of legislators, committee reports, and the like. They also think it’s inappropriate to invoke a statute’s generic purpose (“save the whales,” “protect investors”) to twist its plain meaning. But they still look to a wide array of statutory and contextual evidence to excavate “subjective intent”—to identify the problem that Congress meant to solve and the means it chose to solve it. “A fair reading of legislation,” Chief Justice John Roberts wrote in Obamacare’s last brush with death, “demands a fair understanding of the legislative plan.”
The Know-Nothing judge, however, like a 1970s French literary theorist, denies we can ever know what Congress really means to do when it passes a law. And why should we care, anyhow? Intentions aren’t laws. If assigning the most literal interpretation to a statute’s text subverts what Congress intended, so be it. The Know-Nothing judge consoles herself with the fable that all she’s doing is applying the law. She’s not an activist. You are.
Read the whole thing here!