Textualist Judges Out of Control

William Hogarth, "The Bench"

William Hogarth, “The Bench”

I’ve been following with some concern a D. C. Circuit Court ruling on Obamacare that only citizens who sign up under state exchanges are eligible for federal subsidies to help them purchase it.

In case you haven’t heard, two conservative judges on the D. C. circuit court have said that people who signed up for Obamacare in the federal exchanges cannot receive federal subsidies on the grounds that the language in the law seems to say so. Although those who wrote and passed the law claim otherwise—that federal subsidies should be available to all those who are eligible in every state—the judges claim that they are textualists following the letter of the law. As a literature professor, I’ve seen up close the problems with extreme textualism. More on that in a moment.

First of all, however, here’s Michael Tomasky of The Daily Beast looking at the D.C. court’s 2-1 decision. As he sees it, the judges are seizing on a typo to (this in the words of the third judge) “gut” the law. Tomasky associates the justices with Justice Antonin Scalia:

[T]ypically, Scalia is a textualist. You can tell what that means, I’d wager, without me even explaining it, and in this case, it ain’t good: “I can’t read legislators’ minds. I can go only by the words in the bill. If they left out a word, they left out a word. Tough.”

In fact, there are other sections of the ACA, say several experts, that clearly at least imply the presence of or need for a federal exchange. And plain common sense tells you that Congress didn’t pass this huge and elephantine—and federal—law, whose very point was to enable more Americans to purchase health coverage, with the expectation that said coverage would be limited to the citizens who happen to live in some states but not others. It is facially, as they say in the law business, absurd.

In other words, while the words may be vague, one can tell by looking at the bill as a whole what Congress intended.

Scalia is the most ardent textualist on the Supreme Court, claiming that he just follows the words of the Constitution (or in cases such as this, a Congressional bill) without looking at context. But that’s not how language works, as Nicholas Bagley of The Incidental Economist points out:

To understand the legal fight, keep in mind that words don’t have meaning in a vacuum. Words have meaning only because they mean something to those who speak and to those who listen. They’re communication devices. (As Ludwig Wittgenstein famously explained, you can’t have a private language. Language is public or it’s not really language at all.)

So if you’re trying to make sense of a statute, the question for an interpreter is what Congress meant to communicate by the words that it chose. Usually, that’s easy to figure out. Words are not infinitely malleable. They have meaning in our linguistic community. And it’s a good rule of thumb that Congress means what it says and says what it means.

But not always. Sometimes a statute uses words that don’t track what Congress meant. Sometimes that’s because Congress made a mistake. But more often, loose language fails to get corrected because, when taken in the context of the statute as a whole, the meaning of the statutory text is pretty clear.

This is not an especially controversial point. Words always accrue meaning from context, and that context can affect the meaning of the words that the speaker selects to convey that meaning. If my wife says to me, “Do you mind taking out the garbage?” and I say “yes,” even as I dutifully take out the garbage, it’s clear from context that by yes I meant no. And yelling “fire!” means something very different in a crowded theater than it does at a firing squad.

So too with statutes. Text really is the best guide to meaning. But sometimes the broader statutory context demonstrates that Congress meant to convey something very different than what a literal construction of an isolated snippet of a statute might suggest.

This is what appears to have happened here. Congress got sloppy in some of its language and foes of Obamacare seized on their words and pushed a point in an effort to undermine Obamacare as a whole. A 4th Circuit Federal Court, ruling on the same case later in the day, descried what it saw as an attempt “to deny to millions of Americans desperately needed health insurance through a tortured, nonsensical construction” of the law.

And now to textualism. In the 1950s, American literature professors wanted the same kind of certainty that scientists had and so claimed that text was paramount. What mattered more than anything else was the words on the page.

And to a degree they were right. After all, we read literature because of the language, and the greatest authors are the best wielders of language. But the formalists, as they were called, went further. They tried to exclude all that was not language from the discussion. Therefore, the historical context was unimportant. So was what the author intended (the intentional fallacy). Readers with their various biases were definitely unimportant (the affective fallacy). Only the words mattered.

At the height of formalism, an anthology of poetry was published that omitted all authors and all dates as being irrelevant.

This led to some comic situations. One I recall involved the interpretation of Andrew Marvell’s “To His Coy Mistress.” Many formalists found this to be a perfect poem but there was one sentence that caused confusion:

My vegetable love would grow
Vaster than empires and more slow.

To understand “vegetable love,” it is useful to go back to the Renaissance, where one discovers that a distinction was drawn between the vegetative, the sensitive, and the rational soul. (This is laid out in Richard Burton’s Anatomy of Melancholy.) Vegetative would be our corporal side. But note how this requires a journey back in history. Reading the poem without any historical sense, one might conjure up images of giant cauliflowers.

Now, one can somewhat figure out, from the context, what the image means. If one has the philosophic and historic context, it becomes even clearer.

Or here’s another example. In Laura Bohannan’s famous essay “Shakespeare in the Bush,” the text of Hamlet gets subjected to wild interpretations by Nigerian villagers who approach it from an entirely different context. Although they do manage, in spite of the cultural distance, to make some observant points, nevertheless they would do more justice to the play if they factored in the British Renaissance context.

Textualism, like formalism, may claim to hold the words sacred, but textualists are more apt to be blind to their biases than those who look at context. As someone described their approach, textualists are like people who arrive at a party and only see the people they want to talk with. In the case of Obamacare, Congress intended that as many Americans as possible have access to health care. To interpret their words otherwise is to be guilty of willful blindness.

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  • Jack

    Jon Stewart wondered if, when these judges see a Stop sign on the road, does it completely end their activities for the day? After all, one cannot read the mind of the sign maker. Thus one should not assume what types of activities should be stopped.

  • Robin Bates

    The more I think about the Circuit Court ruling, Jack, the more perverse it seems. Chris Hayes has just brought to light how even the four conservative Supreme Court justices, when they who ruled against Obamacare, assumed (as did we all) that the subsidies were for everyone.

  • Carl Rosin

    A link for “Shakespeare in the Bush”, for any readers who may be curious: http://www.naturalhistorymag.com/editors_pick/1966_08-09_pick.html. What with all the chatter about the New Yorker‘s temporarily (impressively but not fully) open archive, and the consequent praise of longreads, Bohannon is worth several mentions for her brilliant piece.


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