Bork dabbled with—and rejected—“judicial activism” before founding modern originalism
I was asked recently if being an originalist in constitutional interpretation required you to be a texualist in statutory interpretation. The answer is no, at least if the textualism at issue is that practiced by Antonin Scalia and his followers. Indeed, if one is an original methods originalist, as I am, one can emphatically not be a wooden texualist, who rejects the application of methods that were part of the legal context at the time a statute was passed, including reference to legislative history, if that was a conventional method of interpretation.
A Supreme Court case argued this week shows the difference between what we might call conventional methods textualism and wooden textualism. In Emulex Corp. v. Varjabedian the question at issue was whether Section 14(e) of the Securities and Exchange Act supports a private right of action based on the negligent misstatement or omissions made in connection with a tender offer. The Court no longer infers private rights of actions from substantive statutes, even if there seem to be compelling policy reasons to do so. But at the time 14(e) was enacted the Court had a practice of inferring such substantive rights, and, had in fact inferred a private cause of action from similar language when the provision concerned misstatements in a proxy fight rather than a tender offer.
Scalia’s brand of textualism would likely find that legal context surrounding the passage of the provision irrelevant. He appeared to be willing to apply only long-standing canons to help interpret a statutory text. But a conventional methods textualism would be open to this kind of argument. Congress was a likely to be legislating as much in the context of this recent rule as in the context of a well-established canon. Perhaps even more likely because of its recent vintage and the proximity of the legal issue to is prior application.
Justice Elena Kagan put it this way at oral argument:
And what we really want to know is . . . what did those words mean when people enacted those words at that time? And for us to be able to answer that question, the statutory context is extremely important, isn’t it?
This is example of how Kagan in my view often asks just the right question in statutory construction cases. The lawyer for the plaintiff in the case in a similar vein noted that the relevant question was what was “the settled legal meaning,” of the statutory provision, distinguishing it from the ordinary meaning of words outside of their specific legal context.
Some of the justices seemed not to understand this argument, suggesting that the plaintiff wanted to revive a doctrine of policy inference that in my view the Court has properly killed off. But even if it is correct that the Court should not impute a private cause of action as general matter, the prior question is whether Congress meant to create one in this provision. And that question of meaning can only be assessed in the legal context of the time the statute was created.
To be clear, I am not arguing that the plaintiff should win in this case. I am not sufficiently expert in securities law to have a settled opinion. But I do think the issue in the case is properly understood as what is the legal meaning of the provision. I wish only that Kagan would carry over this kind of analysis to questions of the Constitution’s meaning as well. There, as Michael Rappaport and I have argued, its abstract terms often have much more concrete meaning in their rich legal context than the Supreme Court has given them. Her sensible commitment to conventional methods textualism suggests she might want to consider the wisdom of original methods originalism in constitutional interpretation.