Justice Kagan is responsible for two contradictory and fascinating maxims. In 2015, she famously said that “We’re all textualists now.” And then, this summer, she pointedly complained that “The current Court is textualist only when being so suits it.” To my mind, Kagan’s newer statement is descriptively accurate but normatively misdirected. Rather than lamenting the Supreme Court’s suppressed interpretive discretion, she and the other justices should embrace it.
As a newcomer to a conservative Court, Kagan proved that she fit in by honoring textualism. But after the Court shifted further rightward, Kagan fell more often into dissent. And so, having accrued valuable textualist credibility, Kagan is now trying to cash it in. In recent cases on the major question doctrine, for instance, Kagan has started pointing out that the majority is deviating from strict textualism—which, she assumes, is the correct way to do legal interpretation.
There are at least two problems with Kagan’s new approach. First, it isn’t working. The majority is evidently comfortable enough with its own view of the law, including the newfound exception to strict textualism recognized by the major question doctrine. Second, it rests on the controversial notion that textualism is legally correct. Kagan’s natural ideological allies are especially unlikely to agree that textualism is interpretation’s lodestar.
The obvious alternative to what Kagan is doing would be a return to type. Much as Kagan’s predecessor, Justice Stevens, warred against Justice Scalia’s textualism, Kagan (or her liberal colleagues) could try to champion non-textualist methods. But that approach is awkward when textualism has garnered so much support. It seems to concede that, under existing interpretive practice, the Court is getting it right. And, of course, textualism has considerable appeal and so is hard to vanquish.
I would like to suggest a third option. The basic idea is to acknowledge that the law of interpretation, while real, is substantially permissive. As a result, the justices have an awful lot of lawful discretion, and the most contested cases do not normally turn on formal law. Rather, many outcomes are determined by informal law, such as a judge’s personal precedents, or non-legal considerations, such as a particular judge’s views on morality or policy.
Acknowledging legal interpretation’s substantial permissiveness would come with a number of benefits. For one thing, permissive interpretation is both descriptively and normatively superior to either embracing or rejecting strict textualism. As Kagan’s recent comments ruefully acknowledge, actual interpretive practice isn’t all that textualist, even when it comes to the current Court. Moreover, textualism’s critics are right that rigid adherence to text would be bad.
Permissive interpretation would also come with several strategic benefits for frequent left dissenters like Kagan. First, it would undermine the majority’s efforts to deflect responsibility by claiming to be bound by law. Second, it would allow the dissenters to show contradictions or hypocrisy among the majority justices and their personal precedents. And, finally, it would establish that what the Court decides today need not be decided the same way tomorrow.
Of course, permissive interpretation would also come with certain drawbacks. If interpretation is avowedly permissive, then some or all recent majority opinions are probably consistent with the law. Dissenters would therefore have to clarify that their accusations of personal inconsistency do not generally amount to allegations of unlawfulness. The dissenters would also have to own up to the critical role of their own discretion and personal precedents.
Yet even those drawbacks would actually be net beneficial. It is convenient, or easy, for justices to insist both that the law controls all outcomes and that the law is always on their side. But those claims work only when preaching to the choir. And because exaggerated legalism helps the Court deflect even well-taken criticism, it hampers political efforts to check judicial decisionmaking. In truth, the law is both a limit and a license. Dissenters can admit as much.
Take the decision to overrule Roe v. Wade in Dobbs v. Jackson Women’s Health. The left and right are locked in disagreement over whether the outcome in Dobbs was simply prohibited or mandatory. But each position shows why the other is wrong. And, for the left, establishing that Dobbs was discretionary is worth conceding its formal permissibility. Only by revealing the scope of existing interpretive discretion can critics effectively assess both the role of the justices and the appeal of court reform.
If you have followed me this far, the question becomes: How should the justices acknowledge and manage the law’s permissiveness? The answer, I think, is to set rules of legal permissibility—that is, conditions sufficient to show that an interpretation is lawful. In a new draft paper, I’ve argued for just such an approach, which is modeled on the British “basic rules” of interpretation. These rules would mark zones of interpretive discretion where that discretion is most desirable.
I support permissive interpretation because it is correct, or more so than the alternatives. And, in the long run, it’s also in everyone’s best interests. But I’ve framed this post from the perspective of left justices because, as Kagan’s recent comment shows, there is currently an unusual incentive for at least the left wing of the Court to recognize permissive law. By belatedly admitting interpretation’s permissiveness, Kagan has taken an important step toward embracing it.
Re’s Judicata 