Richard M. Re (University of California, Los Angeles (UCLA) - School of Law) has posted The New Holy Trinity (18 Green Bag 2d, 2015) on SSRN. Here is the abstract:
There’s a familiar story about statutory interpretation in the Supreme Court. Once upon a time, the Court cared primarily about legislative purpose, even if it defied clear statutory text. But then Antonin Scalia came to town, became a justice, and laid down a new law: textualism. Central to Scalia’s success was his association of purposivism with a century-old precedent called Holy Trinity. Recently, however, purposivism seems to have evolved and, as a result, to have gotten the upper hand. Instead of adhering to Scalia's New Textualism, the Roberts Court has repeatedly and visibly embraced what might be called “The New Holy Trinity.” This approach calls for consideration of non-textual factors when determining how much clarity is required for a text to be clear. This apparent methodological shift merits attention -- and may have implications for constitutional law.
And from the paper:
The Court hasn’t announced that it’s entered a new interpretive period, but its decisions do suggest the outlines of an interpretive approach.
The easiest way to describe this theory is to contrast it with thoroughly atextual approaches. At least as caricatured, the Old Holy Trinity maintained that even concededly clear statutory text must give way to legislative purpose. In principle, then, text had no determinative analytical force, and a court might as well begin and end its analysis by ascertaining the relevant purpose and rewriting the statute accordingly. Some older opinions may even read that way.
Under the New Holy Trinity, by contrast, text continues to play a meaningful role. It’s just that the script calls for an ensemble cast. They key move is to view purposive and pragmatic considerations as relevant to the identification of textual clarity or ambiguity. Far from eliminating textual considerations or rendering them categorically subordinate to purpose, the New Holy Trinity follows the New Textualism in viewing text as a real constraint on interpretation. If a reading has no textual support, then no amount of pragmatism or purpose can carry the day. Yet the degree of textual support demanded isn’t set until other considerations have been identified and accounted for. In other words, purposive and pragmatic considerations help set the Court’s interpretive expectations and so inform the Court’s textualist judgment.
Highly recommended.
