The Last Word

What Is Next, and the Rise of Textualism

The Last Word Editor: Mark R. Parthemer, Glenmede, 222 Lakeview Avenue, Suite 1160, West Palm Beach, FL 33401.

I recently reconnected with a friend who was in a serious dating relationship when we last spoke. I asked him how the relationship was going, and he said that he called it off because they couldn’t agree on the definition of “next.”

I began writing this issue’s column on a Saturday during football season. If I shared that my favorite professional football team is playing their archrivals “next Sunday,” I suspect readers would understand the game was in eight days, not tomorrow. According to dictionary. cambridge.org, “next” means the first thing or person immediately after the present thing or person.

But how do we reconcile this with the common understanding in this scenario? You are driving a car on the highway. A passenger is navigating and tells you to take the next exit. Is that the next one you come to or the one after that? The answer may be the unspoken rule that the first exit (Sunday) you come to is “this” exit (Sunday), and the one after that is the next one. Why? Because it is the one immediately after the present one.

This brings us to the point of this issue’s column—the interpretation of law. Do we focus solely on the ordinary meaning of the legal text or consider non-textual sources? This translates into whether we focus on what the words mean to ordinary readers (textualism) versus what the words mean to the legislators who passed the law (intentionalism).

Seeking to interpret through the text alone is the essence of textualism. The emphasis of textualism is on the ordinary public meaning of words at the time of enactment. See, e.g., Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1738 (2020) (Gorsuch, J.) (looking for the “ordinary public meaning” of Title VII’s prohibition on discrimination because of “sex”); New Prime Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019) (Gorsuch, J.) (looking for the ordinary meaning of “contract of employment”).

We can examine how the law understands post-positive modifiers attached to certain antecedents. For example, “The general saw the first shot through the binoculars.” What does “through the binoculars” modify? Did the general observe via binoculars the first shot, or did the general observe the first shot to pierce the binoculars?

Canons of construction provide rules helpful for reliably interpreting statutes. In this case, it would be the series-qualifier canon. And this was a matter of critical importance in a recent Supreme Court case. In Facebook, Inc. v. Duguid, 592 U.S. 395 (2021), an issue arose on the interpretation of a provision of the Telephone Consumer Protection Act. The relevant part of the statute reads “to store or produce telephone numbers to be called, using a random or sequential number generator.” 47 U.S.C. § 227(a)(1). The parties agreed that “using a random or sequential number generator” modified “produce”; the issue was whether it also modified “store.”

For users who opt-in, Facebook has a technology that will send an alert when there is an attempt to log into one’s account from an unknown device or browser. Duguid received several notifications, even though he never had a Facebook account. Unable to stop the notifications, he brought a putative class action suit against Facebook. Like watching the ball in a tennis match go back and forth, the lower court ruled in favor of Facebook, the Court of Appeals reversed, and the Supreme Court reversed the reversal.

The Court’s holding strongly relied on the series-qualifier canon. Eight justices joined in the opinion. Justice Sonia Sotomayor wrote the following:

Under conventional rules of grammar, “[w]hen there is a straightforward, parallel construction that involves all nouns or verbs in a series,” a modifier at the end of the list “normally applies to the entire series.”

592 U.S. at 402, quoting A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 147 (2012) (Scalia & Garner).

Standing alone, Justice Alito concurred in the judgment but disagreed with the reliance on this canon. He expressed concern that judges throughout the system would begin applying the canon in a toorule-like fashion, ignoring how common understanding informs the way we read words. Id. at 413. He may not be wrong.

For anyone interested in studying this subject’s nuance in greater detail, I strongly recommend Adam G. Crews, The So-Called Series-Qualifier Canon, 116 Nw. U. L. Rev. Online 198 (2021). Crews, citing a law review article written by now Harvard Law professor and then Columbia Law professor John Manning, proclaimed Justice Scalia as one of the clearest and most influential voices for modern textualism, and described textualism’s goal as identifying an objectified intent —the intent that a reasonable person would gather from the text of the law, versus the subjective intent, such as the intent of the legislature. Id. at 202, citing John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum. L. Rev. 673 (1997). Textualism and a reliance on canons have taken root in the current Supreme Court. No one can know in advance where this may lead.