The Volokh Conspiracy

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Roberts Waves the White Flag of Textualism in Allen v. Milligan

Justice Scalia would be rolling over in his grave.


On Saturday, I offered some faint praise for Chief Justice Roberts's majority opinion in Allen v. Milligan–truly, faint praise, as I commended the Chief for (probably) writing a sincere decision he actually agrees with. Roberts barely cleared a fairly-low bar–not much to write home about. Now, having finished reading all 112 pages, here comes the criticism. To start, I'll focus on textualism.

In Bostock, Justice Alito coined one of the most-memorable lines since Justice Scalia's passing: he charged Justice Gorsuch with piloting a "pirate ship" under a "textualist flag." Allen, alas, couldn't even be called a pirate ship for textualism. The Chief hoisted a white flag of textualism–it was a complete and total surrender to Gingles v. Thornburg (1986), the worst excesses of William Brennan's anti-textualism. Justice Alito explained in his dissent:

Gingles was decided at a time when the Court's statutory interpretation decisions sometimes paid less attention to the actual text of the statute than to its legislative history, and Gingles falls into that category. The Court quoted §2 but then moved briskly to the Senate Report. Today, our statutory interpretation decisions focus squarely on the statutory text.

Part I.A of Chief Justice Roberts's majority opinion, which Justice Kavanaugh joined in full, disregards nearly everything we have learned about textualism over the past four decades. Roberts doesn't just cite legislative history. He cites pre-legislative history. He quotes, at some length, editorials in the Washington Post and New York Times as evidence of the statute's meaning! Indeed, the Chief quotes the Times, which editorialized that City of Mobile v. Bolden (1980) was "the biggest step backwards in civil rights to come from the Nixon Court." The Nixon Court? Not the Burger Court. The Nixon Court?! I'm old enough to remember when the Roberts implored us that there are not Obama or Trump judges, and that is a mistake to identify a judge by the appointing president. But, apparently, there was a Nixon Court, and Nixon judges. Why on Earth would Roberts have included that line, of all lines? The analysis would have been just the same if that sentence was omitted. And for those counting at home, the moderates Justices Stewart (Eisenhower) and Stevens (Ford) were in the majority. To balance things out, the Chief cites an op-ed by Senator Orrin Hatch, who opposed "mandating racial proportionality" and the Wall Street Journal editorial page.

Next, Roberts moves from pre-legislative-history to actual legislative-history.  Roberts traces debates between Senator Hatch, who chaired the Senate Subcommittee and Representative Peter Rodino, who chaired the House Judiciary Committee. Roberts also cites the views of Attorney General William French Smith, though, curiously, does not mention him by name–only "Attorney General." Smith is the only politician who isn't named! Thankfully, this impasse was "resolved" by Senator Bob Dole. And, Roberts relays, the Senate passed Dole's compromise "by an overwhelming margin, 85-8." And, for good measure, we learn that President Reagan signed the Act into law. (I noticed Justice Jackson name-dropped Reagan as well in Talevski).

Why is any of this information relevant to the meaning of the statute? It is not relevant for a textualist decision to focus on the legislative players who drafted a bill. It is not relevant for a textualist decision to indicate the vote-count of a statute, let alone to note the support was "bipartisan." And, Justice Kavanaugh's practice notwithstanding, it is irrelevant which President signed the bill into law. At most, this name-dropping is designed to inject armchair political punditry into the U.S. Reports, and suggest that this benighted bipartisan compromise by long-ago politicians should inform the meaning of the statute. Can we apply this framework to the politicians that enacted the Civil Rights Act of 1964? What did they think about transgender rights? How can Roberts, who joined Bostock, and Kavanaugh, who lambasted Bostock, engage in such anti-textualist reasoning?

The rest of the majority opinion follows his approach. On p. 17, Roberts writes, "We have understood the language of §2 against the background of the hard-fought compromise that Congress struck." On p. 28, Roberts writes, "And neither the text of §2 nor the fraught debate that produced it suggests that 'equal access' to the fundamental right of voting turns on computer simulations." And so on. The careful parsing of the text never actually appears. It all comes back to Bob Dole. Or at least a caricature of Bob Dole.

We're all textualists now, except when the Chief has 5 votes. Justice Scalia would be rolling over in his grave.