Aaron-Andrew P. Bruhl (William & Mary Law School) has posted Supreme Court Litigators in the Age of Textualism on SSRN. Here is the abstract:
The Supreme Court’s approach to statutory interpretation has moved in a textualist direction in recent decades, but there is little systematic information on how litigators’ briefing practices have changed during this era of textualist ascendancy. This Article examines thirty-five years’ worth of party briefs (over 8000 briefs total), explores the briefs’ use of interpretive tools (including differences across categories of attorneys), and compares the briefs to the Court’s opinions.
This examination yields several valuable findings. Although the briefs show a textualist shift, they differ from the Court’s opinions in a few ways. The magnitude of the textualist shift is smaller in the briefs than in the opinions, as legislative history remains an important force in briefs (especially those of the Solicitor General) despite decades of criticism from judicial textualists and steep declines in the Court’s use of that tool. The briefs instead reflect the rise of textualism through a pragmatic supplementation of legislative history with characteristically textualist tools and a shift in which tools the briefs emphasize. Looking at different types of litigators, although there is some evidence that elites responded more quickly to changes in the Court’s practices, elite and nonelite litigators have today come to resemble each other in their interpretive styles. These findings contribute to our understanding of the Court’s informational environment and reveal a divergence between the Court’s pro-textualist rhetoric and the practices of litigators. This divergence may serve the Court’s informational needs better than a world in which the practicing bar emulated the Court’s text- and dictionary-obsessed opinions.
This is not surprising. I believe there is a similar phenomenon in constitutional cases. Highly recommended. Download it while it's hot!
