Standard Textualism

James A. Macleod* February, 2026

For as long as legal scholars have been writing about the rules-versus-standards distinction, textualism has been understood to produce characteristically rule-like law. This Article argues for the opposite view. Far from generating the “law of rules” that Scalia famously envisioned, the rule of modern textualism produces a law of standards—much more so than anybody, proponent of textualism or critic, appears to have recognized.

Two aspects of today’s textualism produce this result. The first is its emphasis on ordinary language and communication. Modern textualism typically produces standards because ordinary language and communication are typically standard-like. The second is modern textualism’s drive to resolve as many cases as possible using only the text’s clear communicative content. In close cases, the search for something both case-dispositive and “clearly” communicated by the text leads to minimalist, fact-bound, standard-like interpretations.

This Article reviews every divided statutory interpretation decision from the Supreme Court’s 2020, 2021, and 2022 terms. The cases in the dataset rarely pose the kinds of conflict that decades of statutory interpretation literature might lead one to expect. Instead of pitting text-based, rule-producing interpretations against purpose-based, standard-producing ones, today’s split decisions typically concern the interpretation of standard-like statutory text; the more strictly text-based the interpretation, the more standard-like the resulting legal content.

That’s not to say that the Court’s self-proclaimed textualists abide by their theory in practice. Every member of the Court, textualist or not, routinely substitutes justice-made rules for legislature-made standards. But modern textualism is uniquely incapable of justifying that practice, let alone guiding or constraining those engaging in it. Modern textualism was not made for judicial rule creation, and it shows.

After criticizing textualist practice on this score, this Article argues that “standard textualism” (i.e., modern textualism, understood in light of its tendency to produce standards) may turn out to be a surprisingly attractive prescriptive theory of interpretation for traditional textualists and modern progressives alike. Granted, modern textualism might be no more constraining than its alternatives when it comes to determining who wins and who loses in a given case. But by limiting the justices’ freedom to create rules that will replace statutory standards going forward, the method forecloses what is often the more consequential, if less frequently discussed, exercise of discretionary power on today’s Court.

Introduction

A specter is haunting modern textualism—the specter of standards.¹ Its origins can be traced to a tension at the heart of Justice Scalia’s early writings. On one hand, in A Matter of Interpretation, Scalia emphasized the textualist judge’s limited role in statutory interpretation.² She must not try to “improve” the statute by selecting whatever means—whether rule or standard—she considers most effective for achieving Congress’s ultimate ends, much less her own.³ Instead, the good textualist simply gives legal effect to the text Congress enacted, as it would be understood by reasonable, ordinary readers (its “ordinary public meaning”).⁴ On the other hand, in The Rule of Law as a Law of Rules, Scalia argued that where Congress has chosen to enact standards, the textualist judge should replace them with rules of her own making.⁵ Granted, by changing “vague congressional commands into rules that are less than a perfect fit,” the judge will inevitably introduce some amount of “substantive distortion.”⁶ But, at least for Scalia, this was a price worth paying.⁷ These two impulses—an insistence on strict fidelity to the ordinary public meaning of the text and a desire to avoid standard-like law—were on a collision course from the very beginning.

Textualist theory has resolved the tension decisively in favor of fidelity to the text’s ordinary public meaning. “Although textualists may in practice have a predilection for rules,” John Manning explains, “textualism rests on a straightforward conviction that faithful agents must treat rules as rules and standards as standards.”⁸ As Frank Easterbrook notes, “whether to have rules (flaws and all) or more flexible standards (with high costs of administration and erratic application) is a decision already made by legislation.”⁹

And yet, underlying modern textualism’s insistence on textual fidelity, there remains an implicit but surprisingly pervasive assumption that the statutory text typically communicates rules, not standards.¹⁰ Indeed, it’s routine to frame textualism’s commitment to the text as, in effect, a commitment to honoring Congress’s decision to enact rules. With striking uniformity, whenever Manning, Easterbrook, and other principled textualists invoke textualism’s commitment to “treat rules as rules and standards as standards,” they spotlight only the first half: the method’s refusal to convert legislature-made rules into judge-made standards.¹¹ The converse—a refusal to convert legislature-made standards into judge-made rules—discreetly exits the stage. And textualists are not alone: As Fred Schauer has pointed out, “almost all” the scholarly literature on interpreters’ treatment of rules versus standards, whether written by textualists or not, “has been focused on the rules side of the rules-standards divide.”¹²

The upshot is that modern textualists and nontextualists alike continue to regard textualism as uniquely conducive to the production of rule-like legal content.¹³ But they now ground that tendency in the ordinary public meaning of the statutory texts being interpreted, rather than any Scalia-style commitment to judicial rulemaking.¹⁴ Today then, despite the ways textualism has evolved, the predominant view remains the same: “Whatever the root causes . . . [it] seem[s] clear” that “the background principles of interpretation used by judges whom we think of as textualists are more likely to produce rule-like laws than the background principles of interpretation used by other interpreters.”¹⁵

This Article argues that the predominant view gets things backward.¹⁶ There’s a deep irony at the heart of modern textualism: By pledging fidelity to the ordinary public meaning of the statutory text and thereby working itself pure as a rule-like, discretion-minimizing method for deciding cases, modern textualism has effectively committed itself—uniquely among interpretive approaches—to producing standard-like legal content.¹⁷ Indeed, far more standard-like content, across a far broader range of cases, than anybody, critic of textualism or proponent, has recognized.¹⁸ Textualists’ vision of a Supreme Court generating “textually driven, rule-bound, rule-announcing judgments”¹⁹ is unattainable, because the more “textually driven” and “rule-bound” the method, the less conducive it is to producing “rule-announcing judgments.” The Article’s central claim, in short: The rule of modern textualism would produce a law of standards.

Two core features of modern textualism drive this outcome. The first we’ve already noted: its commitment to ordinary-public-meaning-based interpretation. Modern textualism favors standards because ordinary public meaning is typically standard-like, both in general and especially in the statutory provisions that divide today’s Court.²⁰ The second feature is modern textualism’s commitment to resolving as many cases as possible using only the text’s “clear” communicative content.²¹ To accomplish this feat—to wring from the text, in ever closer cases, something that is both clearly communicated and case-dispositive—modern textualism often requires adopting incremental, fact-bound, standard-like interpretations.

To demonstrate its central claim, this Article draws on a review of every divided Supreme Court statutory interpretation decisions issued in three of the Court’s most recent terms.²² The cases in the dataset rarely concern the kinds of clear-text versus underlying-purpose conflict that traditional statutory interpretation literature might lead one to expect.²³ Instead of pitting text-based, rule-producing interpretations against purpose-based, standard-producing ones, today’s split decisions typically concern the interpretation of standard-like textual provisions. The more strictly text-based the interpretation, the more standard-like the resulting legal content.

To be clear, this Article’s claim isn’t that justices who self-identify as textualists refuse to create rules in practice.²⁴ After all, there is much more power to be had in making rules than in applying standards;²⁵ as the cases in the dataset will illustrate, none of the justices shy away from exercising that power.²⁶ The claim is instead that modern textualism is uniquely incapable of justifying judicial rule creation, let alone guiding the justices’ engagement in it.²⁷ One upshot is that, in practice, modern textualists routinely exercise far greater power than their theory permits.²⁸ Another is that they do so from a position of willful ignorance, unconstrained by the purposive and pragmatic considerations that guide rulemakers in other contexts—considerations that could nonarbitrarily bridge the gap between the input of standard-like statutory text and the output of rule-like legal directive.²⁹ This marks an important and underappreciated difference between modern textualism and its alternatives.³⁰ Modern textualism was not made for rule creation, and it shows.

After highlighting and criticizing these aspects of modern textualist practice, the Article’s final contribution is to evaluate whether this new vision of “standard textualism”³¹—that is, modern textualism, understood in light of its tendency to produce standard-like law—is a desirable prescriptive theory of statutory interpretation. I argue that, somewhat surprisingly, standard textualism may have a lot to commend itself both to traditional textualists (despite their longstanding taste for rules) and modern progressives (despite their traditional distaste for textualism). More specifically, I argue that for textualists, “standard textualism” not only stays true to their theory’s foundational vision of the separation of powers and the limited role of the judiciary, but it also realizes the very same rule-of-law and democratic-accountability values that led textualists like Scalia to extoll rule-like law in the first place.³² At the same time, standard textualism’s practical implications nicely align with the interests of Supreme Court reformers, predominantly associated with the political left, who wish to see Supreme Court justices exercise less power vis-à-vis other decisionmakers.³³ With proposals for a new “progressive textualism” being discussed alongside more structural Court reform efforts,³⁴ the time may be ripe for a realignment of political ideology and interpretive methodology.³⁵ This Article’s vision of “standard textualism” offers one such path forward.

That path is not merely an abstraction: “Standard textualism” carries immediate, concrete normative implications. To take one example, consider how today’s Court should handle cases challenging agencies’ applications of standard-like statutory terms following Loper Bright.³⁶ The Court will of course need to decide whether the relevant statutory term does or does not reach the facts of the case. In other words, the Court will have to reach an outcome. But should it additionally create a rule that effectively replaces the statutory standard going forward? Or should it instead stick as closely as possible to the standard-like text’s clear communicative content, leaving any rulemaking to Congress and/or the agency Congress charged with implementing the statute? Standard textualism provides a clear answer: The Court should stick to the text.

Of course, that “clear answer” doesn’t resolve which side should win the case. And that’s worth emphasizing: This Article does not claim that modern textualism is an especially discretion-minimizing method for deciding case outcomes (i.e., who wins and who loses) in the kinds of cases that reach the Supreme Court. Maybe it is, maybe it isn’t.³⁷ That’s already the subject of extensive debate.³⁸

This Article focuses on a different issue—one that has received far less attention despite being at least as consequential. The Article’s claim is that, relative to alternative interpretive approaches, modern textualism would minimize the justices’ discretion as to the form of the directive (rule or standard) that their decision establishes going forward, even if it does nothing to reduce the discretion they (perhaps inevitably) exercise in determining which side should prevail in the case at hand.³⁹ This means, most importantly, that the method forecloses the largest and most frequent exercise of discretionary power in which the justices currently (and unnecessarily) engage when deciding statutory cases: the creation of rules.⁴⁰

This Article proceeds as follows. Part I summarizes modern textualism’s central tenets and contrasts them with those of its main competitor, modern pluralism. Part II explains the rules-versus-standards distinction. Part III considers whether modern textualism or modern pluralism, understood as directives to judges about how to decide cases, is the more rule-like, discretion-minimizing method. It concludes that, while neither theory is clearly more rule-like in its instruction for deciding case outcomes, modern textualism is clearly more rule-like in its instruction to judges for determining the form of directive the decision establishes. Part IV is the heart of the Article. Section IV.A argues that modern textualism’s rule-like insistence on fidelity to ordinary public meaning, along with its pressure to resolve even close cases using only the text’s “clear” communicative content, make it uniquely prone to produce standard-like legal content. Section IV.B illustrates this using a survey of all divided Supreme Court statutory interpretation cases from the past three terms. Next, in light of the many cases in which self-proclaimed textualist justices create rule-like legal content, Section IV.C considers various textualist attempts to deny or to justify judicial rule-creation. Parts V and VI consider pressing normative implications if one accepts Part IV’s basic thrust. Specifically, Part V contrasts modern textualists’ and modern pluralists’ approaches to rule-creation in practice, and it articulates some concerns about modern textualist practice on this front, beyond mere accusations of theoretical infidelity. Finally, Part VI argues that “standard textualism” may prove to be a surprisingly attractive prescriptive theory of interpretation.

I. Modern Textualism Versus Modern Pluralism

This Part summarizes the two main theories of statutory interpretation currently on offer: modern textualism and modern pluralism. Section I.A provides a relatively uncontroversial and sympathetic account of modern textualism, foregrounding the theory’s normative foundations and highlighting the judicial practices that stem from them.⁴¹ Those normative foundations include a view of the U.S. Constitution and of democratic governance in which judges play a tightly constrained role, and a closely related commitment to democratic accountability and rule-of-law values like fair notice and predictability. From these foundations springs a refusal to “fix” or “improve upon” duly enacted statutory text and a drive to resolve as many cases as possible exclusively on grounds of clear ordinary public meaning.

Section I.B gives a very brief account of the modern alternatives to textualism, grouping them under the label “modern pluralism.” Modern pluralism envisions a judiciary more actively engaged in assisting Congress’s efforts to achieve whatever policy goals motivated a given statute’s passage. From this normative commitment stems a greater willingness to draw on extratextual considerations to craft the means (rule or standard) best suited to accomplishing Congress’s ultimate ends.

A. Modern Textualism

Modern textualists source their interpretive philosophy to the U.S. Constitution’s separation of powers.⁴² Congress can make binding law only through a duly enacted text. When interpreting a statute, therefore, “[o]nly the written word is the law,” not any congressional intent or statutory purpose that might be inferred based on extratextual considerations.⁴³ This is just as well because, modern textualists emphasize, the Constitution assigns judges a highly circumscribed role in interpreting statutes, and the search for extratextual evidence of intent, or the identification of underlying statutory purposes, invites the sort of creativity that would contravene that limited role.⁴⁴ In modern textualists’ vision of the judiciary, judges are engaged in a formalistic enterprise: They are to apply the text that Congress enacted—not add to, subtract from, or otherwise improve upon it.⁴⁵ Congress may enact statutory provisions that fail to serve the judge’s, the public’s, or even the legislature’s own view of wise policy. When this happens, modern textualism instructs judges to stand firm and, as always, abide by the text.⁴⁶

Still, to apply statutory texts to facts, one must have some theory of how to decipher what these texts (as in, the words and concepts represented by the little squiggles on the page) actually mean.⁴⁷ And if textualism’s theory of meaning were to license too much judicial creativity—if, for example, statutory language “means” whatever judges think will best accomplish what they believe to be the statute’s underlying purpose, or if it “means” whatever will produce the best consequences—then textualism would lead judges to exceed their constitutionally circumscribed role.⁴⁸ Modern textualism therefore requires a theory of meaning that tethers statutory language to objective facts. Judges must find meaning, not create it.

To find a statutory provision’s meaning, modern textualism, borrowing from modern originalism, instructs judges to find the provision’s “ordinary public meaning,”⁴⁹ or, “the meaning communicated by that statute to competent English language speakers” at the time it was drafted.⁵⁰ By effectively outsourcing the determination of meaning to a reasonable ordinary reader, textualism renders the question of meaning objective and empirical: “[T]he question is only how the words would be read by an ordinary user of the English language.”⁵¹ Moreover, modern textualism’s emphasis on ordinary public meaning promises to respect the bargain Congress struck when it enacted a given statutory provision.⁵² After all, Justice Scalia emphasized, “all we can know is that they voted for a text that they presumably thought would be read the same way any reasonable English speaker would read it.”⁵³ And the objectivity, stability, and predictability of ordinary-public-meaning-based interpretation helps Congress do its job by allowing Congress the flexibility to reach compromises without fear that courts will later adopt an idiosyncratic reading in an effort to “improve” the statute.⁵⁴ At the same time, it encourages careful drafting on Congress’s part: Judges will not bail Congress out by adding or subtracting from the text to help Congress achieve whatever Congress might have wanted.⁵⁵ Judges will apply the text as they find it, for better or worse.⁵⁶

Although modern textualism is grounded in a view about what the Constitution requires vis-à-vis Congress and the courts, modern textualists emphasize that reliance on ordinary public meaning confers normative benefits vis-à-vis the public. Chief among these are rule-of-law values like fair notice and predictability.⁵⁷ As Justice Barrett has written, quoting Scalia, “Fairness requires that laws be interpreted in accordance with their ordinary meaning, lest they be like Nero’s edicts, ‘post[ed] high up on the pillars, so that they could not easily be read.’ ”⁵⁸ Going further, Barrett contends that judicial adherence to ordinary meaning reflects judges’ role as “agents of the people.”⁵⁹ As Justice Gorsuch explains, “The people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms based on some extratextual consideration.”⁶⁰ Furthermore, ordinary-public-meaning-based interpretation promotes a uniquely democratic rule of law, allowing the public to understand legislation at the time of its passage and to hold legislators accountable accordingly, rather than waiting for unelected judges to decree what the statute “really” means.⁶¹

Finally, before turning to textualism’s alternatives, one remaining aspect of it deserves emphasis: the increasing pressure it places on judges to find a clear, case-dispositive textual meaning in virtually every case.⁶² This pressure stems once again from modern textualism’s approach to the separation of powers.⁶³ On one hand, as we’ve seen, there’s the modern textualist view that it would be an illegitimate enlargement of the judicial prerogative to base statutory interpretation decisions on extratextual considerations, except where doing so is absolutely necessary.⁶⁴ On the other hand, there is the modern textualist belief that deference to others’ interpretations—whether members of Congress (as with legislative history) or executive agencies (as with the Chevron doctrine)—is illegitimate.⁶⁵ With reliance on extratextual considerations avoided at all costs, and deference to others’ interpretations off the table, today’s textualists are under greater pressure than their textualist forefathers—let alone their modern pluralist colleagues—to find something that is both “clearly” communicated by the text and is case-dispositive, even in the close cases that generate divided Supreme Court opinions.⁶⁶

B. Modern Pluralism

Modern alternatives to textualism place considerably less pressure on judges to base their decisions exclusively on the ordinary public meaning of the text. The text is centrally important, to be sure (this is the sense in which “we’re all textualists now”).⁶⁷ But whereas modern textualism treats the text’s ordinary public meaning as the sole criterion for legal validity, modern nontextualists are more open to additional considerations, especially where the text is arguably unclear.⁶⁸

Chief among these extratextual considerations is the statute’s purposes, that is, the more fundamental policy goals that the statute aims to achieve.⁶⁹ So, whereas modern textualism focuses exclusively on Congress’s choice of legal means (i.e., the rules or standards articulated in the text),⁷⁰ modern pluralists often focus additionally on the policy ends for which Congress chose them. Crucially, modern pluralism permits judges greater freedom to alter those means when doing so would better accomplish Congress’s apparent policy goals. Granted, modern pluralism’s respect for clear text will rarely permit the creation of standard-like exceptions to clear rules.⁷¹ But where the text provides a standard—something less clear and more vague than a bright-line rule—modern pluralists have greater latitude than their textualist counterparts to craft a rule in its place. Whereas modern textualists “believe it imperative, given the complexities of the legislative process, to respect the level of generality at which Congress speaks,”⁷² modern pluralists need not leave things so close to where Congress left them.

For modern pluralists, then, ideal appellate statutory interpretation decisions are not necessarily passive applications of law to fact, come what may. Nor are they, as textualists have at times emphasized, opportunities to hold Congress’s feet to the fire to encourage greater care when drafting statutes in the future.⁷³ Instead, appellate decisions are an opportunity to actively partner with Congress, aiding in the development of a legal regime that effectively and efficiently implements policy.⁷⁴ Where Congress leaves gaps or imprecision, modern pluralism encourages judges to come to an all-things-considered judgment about the best way to fill those gaps or add that precision.

II. Rules Versus Standards

This Part provides a brief account of the traditional distinction between rules and standards. Following Fred Schauer and many others, this Article characterizes the distinction between rules and standards as a distinction between comparatively nonvague directives (rules) and comparatively vague directives (standards).⁷⁵ Two aspects of this distinction deserve emphasis at the outset. First, it places legal directives on a spectrum from more rule-like to more standard-like.⁷⁶ For brevity, this Article sometimes refers to a given directive as a “rule” or a “standard” without explicitly comparing it to another directive. But strictly speaking, a directive cannot be a “rule” or a “standard” in an absolute sense, only more rule-like or more standard-like than some other directive. Second, the crux of the distinction—the thing that makes a given directive more rule-like or more standard-like—is the directive’s degree of vagueness.⁷⁷ Given the central role vagueness plays in distinguishing rules from standards, it’s worth clarifying what vagueness is and considering some examples of it.

A word or phrase “is vague [when] there are borderline cases for its application.”⁷⁸ Consider the directive, “bring me a bunch of chairs.” The term “a bunch” is vague: In a given context (say, setting up a room for a meeting), there are some quantities of chairs that would clearly not qualify as “a bunch” (say, two chairs), and there are some quantities that clearly would qualify (say, fifteen chairs), but there are borderline cases (say, five chairs). These borderline cases present a line-drawing problem: There’s no clear point at which, upon adding another chair, the quantity of chairs transitions from “not a bunch” to “a bunch”; it’s not the case that five chairs is clearly “a bunch of chairs,” while four clearly is not. This vagueness renders the directive more standard-like and less rule-like than an alternative directive that specifies the precise number of chairs to bring (e.g., “bring me five chairs”).

Much more could be said about vagueness,⁷⁹ but for present purposes, one more point will suffice. While the term “a bunch” is at least arguably vague only with respect to a single factor (quantity), most terms are vague with respect to multiple factors.⁸⁰ Such terms are akin to the quintessential standard-like form of a legal directive, the multifactor balancing test.⁸¹ The term “chair,” for example, is vague with respect to multiple factors: Its application is more or less appropriate depending on the length of the object’s back (too short and it becomes a stool), and the length of the seat (too long and it becomes a chaise), among other attributes.⁸² To foreshadow, the bulk of the Supreme Court’s divided statutory interpretation cases concern terms that, like “chair,” are vague as to multiple factors.⁸³

Now that we’ve seen what the rules versus standards distinction turns on—a directive’s vagueness (standard) or lack of vagueness (rule)—it’s worth highlighting four things on which the distinction does not turn. The first is the presence of ambiguity. “A word or phrase is ambiguous,” as opposed to vague, “when it can be used in ‘more than one sense’ such that it is open to a ‘discrete number of possible meanings.’ ”⁸⁴ In the directive “bring me a bunch of chairs,” the word “chairs” is ambiguous insofar as it could refer either to pieces of furniture (as we’ve been assuming), or instead leaders of academic departments (as in, “the chairs of the history and math departments”). Ambiguity, unlike vagueness, forces the interpreter to make a stark choice between discrete meanings (“Is he asking for furniture or department heads?”). Unlike vagueness, ambiguity does not present the interpreter with borderline cases and their associated line-drawing problems; there will be no difficulty determining whether a given thing is a “chair” in the furniture sense or instead in the department-head sense. Of course, after the interpreter resolves the ambiguity, if it turns out that the directive concerns chairs in the furniture sense, then she may need to engage in a standard-like balancing of multiple factors to determine whether the vague term “chair” (in the furniture sense) applies to a given object. But the presence of ambiguity, which forced her to first choose which discrete meaning of “chair” was at issue, did not itself render the directive any more standard-like than it would have been without the ambiguity.⁸⁵

Second, the rules-versus-standards distinction does not turn on whether the directive explicitly requires the interpreter to make recourse to any of the broad, underlying purpose(s) that may have motivated its promulgation. To be sure, some standards do invoke what may have been relatively fundamental animating purposes. For example, the standard-like directive “no unsafe driving,” by explicitly invoking “safety” without further specificity, requires the standard-applier to make direct recourse to the directive’s presumable purpose: the promotion of “safety.” But in such cases, for purposes of classification as a rule or standard, vagueness continues to do all the work. The directive is standard-like only because and insofar as “safety” is a vague term. The directive “no unreasonable driving,” despite its failure to name a deeper purpose such as safety underlying its promulgation, may be even more vague and therefore more standard-like. Conversely, adding, “in order to promote safety, no unreasonable driving,” might, by virtue of naming the deeper purpose, render the directive less vague and therefore more rule-like. In short, vagueness, not recourse to underlying purposes per se, renders a directive relatively rule-like or standard-like.

Third, the rules-versus-standards distinction doesn’t turn on whether the directive implicitly calls for considering such underlying purposes. Granted, perhaps the most common way to resolve questions about borderline applications of vague concepts is to make recourse to the purpose(s) of the directive containing the vague concept.⁸⁶ But seeking purpose is just one among numerous alternative methods of coming to closure. Others include the use of substantive tie-breaking rules like the rule of lenity;⁸⁷ deference to other decisionmakers’ interpretations;⁸⁸ all-things-considered moral judgment;⁸⁹ and so on.⁹⁰ A decisionmaker’s recourse to a statute’s “background policy” is a common but nonnecessary consequence of the statute being standard-like, not a defining feature of standards.

Finally, the rules versus standards distinction does not turn on the directive’s breadth of application. As an example, consider a bare “no vehicles in the park” directive. That directive is standard-like compared to an otherwise identical directive that additionally contains an exhaustive list of the things that shall count as “vehicles.” Of course, the latter, more rule-like directive might, if it contains only a short list, categorize fewer things as “vehicles” than would our ordinary concept of “vehicle.” Or, if it contains an especially long list, it might treat more things as vehicles relative to the more standard-like directive that contains no such list. All that matters for purposes of classifying it as a rule rather than a standard is that its exhaustive list makes it relatively more specific (i.e., less vague) about its coverage. The breadth of its coverage is immaterial.

III. Is Modern Textualism the More Rule-Like Method?

Theories of interpretation can be viewed as, among other things, directives to judges concerning how to decide cases⁹¹—more specifically, both (A) how to determine a given case’s outcome (who wins and who loses), and (B) how to determine the form of the directive (rule or standard) that the case establishes going forward. It will be important for our purposes to distinguish those two aspects of judicial decisionmaking. As directives to judges, interpretive theories can be relatively rule-like or standard-like with respect to each of them. As Section III.A notes, it’s debatable (and hotly debated) whether modern textualism is more rule-like than modern pluralism for determining case outcomes in the kinds of close cases in which the two methods diverge. But the second aspect of judicial decisionmaking—determining the form of the directive the decision will establish going forward—is often more consequential, despite having received much less attention. And as Section III.B explains, there is little doubt that with respect to it, modern textualism is a far more rule-like method than modern pluralism.

A. Determining the Case Outcome

Modern textualism purports to supply judges with a rule-like directive for determining who wins and who loses in a given case. It instructs judges to consult one factor (the ordinary public meaning of the text) and give it legal effect.⁹² Still, modern pluralism provides judges that same instruction in cases where the text’s communicative content clearly favors one side over the other.⁹³ In many cases, then, both approaches are equally rule-like. Both reach the same outcome on the same ground: the text’s clear ordinary public meaning.

To decide whether modern textualism is a more rule-like method for determining the outcome of statutory interpretation cases, then, one must look to the cases where the statutory text is least clear. Those close cases are the ones where modern textualism and modern pluralism part ways—the former maintaining its exclusive focus on ordinary public meaning, the latter more readily engaging in a standard-like balancing of extratextual factors (policy purposes, practical consequences, judicial efficiency and predictability concerns, and so on).

As applied to those close cases, there’s plenty of debate concerning whether modern textualism actually provides a more rule-like directive than modern pluralism.⁹⁴ The reason is that, whether modern textualists realize it or not, their method’s central directive—“decide based on the clear ordinary public meaning of the text”—may often be vague enough to allow either side to win.⁹⁵ In such cases, if modern textualism effectively provides judges no further guidance, then modern pluralism’s recourse to extratextual factors may make it the more rule-like, discretion-constraining method.⁹⁶

This Article won’t attempt to resolve that perennial debate. For present purposes, the point is simply that it’s a live issue that receives considerable attention from scholars and judges alike. What has received far less attention, despite being at least as consequential, is the question that the next Section addresses: Which interpretive methodology provides the more rule-like instruction to judges as to how they ought to determine the form of the directive (rule or standard) that their decision establishes going forward? The answer to that question turns out to be comparatively clear.

B. Determining the Form of the Directive

Modern pluralism is a considerably more standard-like method than modern textualism for determining the form of legal directive that the Court’s decision will establish. After all, even where the text clearly dictates who wins and who loses the case, the pluralist judge remains relatively free to choose the means—the rule or standard—that will most effectively accomplish Congress’s broader ends going forward. To be sure, modern pluralism doesn’t give the judge unlimited discretion to choose whatever rule or standard she might prefer. Her decision is constrained by a multifactor balancing test (weighing text, purpose, consequences, etc.), and by the need to articulate a directive consistent with the outcome of the case at hand. But the form of the directive remains highly discretionary. A judge-made rule might work better than a Congress-made standard for any number of reasons—it more effectively accomplishes Congress’s purposes, makes law more predictable, increases perceptions of fairness, increases ease of judicial administration, and so on.⁹⁷ Modern pluralism permits judges to weigh such considerations in settling on a relatively rule-like or standard-like directive that will govern future cases.

Modern textualism, on the other hand, does not permit judges to second-guess Congress’s choice in this way.⁹⁸ Under modern textualism, judges have no business choosing how rule-like or standard-like statutory law ought to be.⁹⁹ As Judge Easterbrook summarized, “[W]hether to have rules (flaws and all) or more flexible standards (with high costs of administration and erratic application) is a decision already made by legislation.”¹⁰⁰ Modern textualism instructs judges to treat “rules as rules and standards as standards,”¹⁰¹ not to choose, based on a discretionary balancing of multiple factors, whether to substitute one for the other.

IV. The Rule of Textualism as a Law of Standards

So, setting aside the issue of case outcomes and focusing instead on the form of the directive that judicial decisions establish, we can ask the question at the heart of this Article: What would happen if judges followed the rule-like method of modern textualism? This Part sets out to prove the following claim: At least at the Supreme Court level, there’d be a whole lot more standard-like legal content than anybody, modern textualist or critic of modern textualism, appears to have realized.

As Section IV.A explains, there are two basic reasons for this. The first stems from modern textualism’s emphasis on ordinary language and communication. Modern textualism typically produces standards because ordinary language and communication are typically standard-like. The second reason stems from modern textualism’s drive to resolve as many cases as possible using only the text’s clear communicative content. In the kinds of close cases today’s Supreme Court hears, the search for something both case-dispositive and “clearly” communicated by the text would lead to minimalist, fact-bound, standard-like interpretations.

If ordinary communication frequently employs vague, standard-like terms, the statutory provisions that generate divided Supreme Court cases are absolutely riddled with them. As one might imagine, case selection virtually guarantees this.¹⁰² But one needn’t imagine. Section IV.B uses a review of three recent terms’ divided Supreme Court decisions to illustrate and substantiate the basic argument articulated in Section IV.A.

The methodology here is important. Historically, the common approach to highlighting a given phenomenon in statutory interpretation has been to select a few examples from a large, perhaps unlimited, set of cases that most clearly illustrate it, leaving unclear how often the phenomenon occurs. Following the literature’s recent empirical turn, Section IV.B adopts a more systematic approach befitting this Article’s more systemic claim, which is not merely that modern textualism would sometimes produce more standard-like legal content than has been acknowledged, but that it would do so across the mine-run of cases in which the justices part ways. Section IV.B therefore presents a relatively large number of examples from a relatively small set of potential cases.¹⁰³ This method has its own drawbacks—chief among them is the limited discussion each case receives¹⁰⁴—but it affords a more illuminating vantage point from which to assess the Article’s central claim.

Of course, in many of the cases in the dataset, justices who self-identify as modern textualists write opinions promulgating much more rule-like directives than the statutory provisions they interpret. Section IV.C considers the ways that modern textualists deny or purport to justify doing so. It argues that each of these attempts fails, and that modern textualists adhering to their theory ought therefore routinely to articulate more standard-like legal directives than they do at present.

A. Why Modern Textualism Favors Standards: The Basic Argument

As we’ve seen, modern textualism instructs judges to (1) interpret statutory text in accordance with its ordinary public meaning, and (2) resolve as many cases as possible without recourse to anything beyond what the text clearly communicates. Under current conditions,¹⁰⁵ both those features inexorably lead modern textualism to produce standard-like legal content.

1. The Pervasiveness of Standards in Ordinary Communication

First, ordinary meaning is typically vague and standard-like, not precise and rule-like. That is because (a) it frequently contains terms that are explicitly, or literally, vague; and (b) it sometimes contains terms that, despite being literally precise, turn out in context to be implicitly vague, whereas the converse is rarely true (i.e., literally vague terms are rarely implicitly precise). Let’s consider each in turn.

a. Explicit, or Literal, Vagueness

Vague terms permeate ordinary communication, and for good reason.¹⁰⁶ In everyday life, they are often useful and easy to understand. We say things like, “there’s a large crowd here,” without having to count the precise number of people present, determine their exact location, and so on. And we’re untroubled by our inability to delimit the fuzzy borders of the terms “large,” “crowd,” and “here.” When we hear terms like “game,” “vehicle,” “unreasonable,” and “neglectful,” we easily understand them even though we’re unable to break these concepts down into rule-like sets of necessary and sufficient conditions.

Of course, the fact that we can intuitively apply vague concepts in easy cases doesn’t render those concepts nonvague. Lawyers know too well that borderline cases and their associated line-drawing problems lie in wait, and that when vague terms appear in statutes, these hard cases will percolate into appellate courts. Still, lawyers’ over-familiarity with a few famous legal examples of vagueness (e.g., the concept of a “vehicle,” at issue in Hart’s ubiquitous “no vehicles in the park” hypothetical¹⁰⁷) may lead them to underappreciate vagueness’s ubiquity in ordinary communication.

In any event, I take it that the frequency of explicitly vague expressions in ordinary language will, with a bit of reflection, come as no surprise to a legally trained audience. And given the previous discussion of vagueness as the crux of the rules-versus-standards distinction,¹⁰⁸ it’s only a small step to recognize that these various vague terms are effectively standard-like. To apply the term “vehicle,” we intuitively balance multiple factors (How big? Is it motorized? Does it transport people? Etc.). The same goes for “game,” “unreasonable,” “neglectful,” and so on.¹⁰⁹ Multifactor balancing tests are pervasive in ordinary conceptual and linguistic understanding.¹¹⁰ They will therefore be pervasive under any interpretive method that hems closely to ordinary reader understanding.

b. Implicit, or Nonliteral, Vagueness and the Implied-Rules Versus Implied-Standards Asymmetry

Until now, we’ve been emphasizing terms that are overtly or explicitly vague and therefore, in effect, standard-like. That is, we’ve been talking about terms that are vague on their face. But that focus understates the pervasiveness of vagueness in everyday communication. And that is because even terms that seem on their face to be nonvague often turn out to be vague once they’re understood in context. For example, when I say that two people are “equally” tall or “equally” reasonable, I don’t mean, and won’t be taken to mean, that they are precisely the same height, down to the nanometer, or that they are precisely the same degree of reasonable, however such precision might be measured. Instead, I’m understood to mean that they are approximately “equal,” despite the precision of the term “equal” if taken literally. And once we acknowledge that we aren’t talking about perfectly precise, literal equality, we are back in the vague, standard-like line-drawing business: In context, how close to literal equality must their heights be in order to be appropriately labelled “equal”? Granted, there are some contexts in which the literal, precise meaning of a given term is the one communicated to reasonable readers. But it is not infrequent that, in ordinary communication, a literally precise, or rule-like, term is used to communicate something implicitly more standard-like.¹¹¹

The important point for present purposes is that in this regard, ordinary communication contains an asymmetry: While implied standards are common, implied rules are rare. That is, literally vague terms rarely communicate implicitly nonvague concepts. For example, when I ask whether someone is “tall,” I don’t communicate through my use of the vague term “tall” a more rule-like concept (say, “six feet or above”), such that a reasonable ordinary listener would understand that anybody under six feet is clearly not “tall,” anyone six feet or above is clearly “tall,” and there are no borderline cases. After all, if I had meant to invoke the more precise, rule-like concept “six feet or above,” I would have used those precise, rule-like terms! The example generalizes: It’s rarely the case that one’s use of a literally vague expression implicitly communicates some precise, rule-like concept.

Now, it’s true that with considerable extratextual context, it is possible to communicate a rule-like concept using a literally vague term. Imagine, for example, that an amusement park bans all those six feet and above from going on a particular ride, and my only purpose or intent in asking whether someone is “tall” is to determine whether he is barred from the ride. If I’m aware that you know my purpose in asking, and I believe you will take my purpose into account when interpreting my question, then perhaps in context I have implicitly communicated, using the vague term “tall,” the precise concept of “six feet or above.”

But even though such cases exist, they tend to require an interpreter to consider extensive extratextual background information—something modern textualism uniquely discourages.¹¹² In any event, whatever amount of contextual enrichment one deems appropriate, it remains the case that in ordinary communication, implied standards are much more prevalent than implied rules. This basic asymmetry further contributes to the pervasiveness of standards in ordinary readers’ understanding and, therefore, in the legal content that modern textualism recognizes.

2. Textualism’s Push for Case-Dispositive Clarity in Close Cases

Apart from its emphasis on ordinary public meaning, another important aspect of modern textualism pushes it to favor standards: namely, its pressure on judges to find something in the text that is both “clearly” communicated and case-dispositive, even in seemingly close cases where the text is at least arguably unclear. In such cases, modern pluralism would permit considering the statute’s underlying purposes, the policy consequences of one or another interpretation, and so forth. Even the textualism of a few decades ago was more open to declaring the text unclear, whether the upshot was a turn to purposive considerations, deference to an executive agency’s interpretation under Chevron, or some other extratextual means for resolving the case.¹¹³ In contrast, modern textualism effectively forces judges back to the text, insisting that they wring from it something that resolves the case at hand and is clearly enough communicated to foreclose any reliance on extratextual considerations.¹¹⁴

The clear communicative content thus wrung from the text in close cases will, almost by definition, tend to be relatively fact intensive, incrementalist, and narrow in its reach—in short, standard-like. To be sure, the communicative content thus identified must reach far enough to resolve the case at hand one way or another. But it will tend not to be the kind of unnecessarily far-reaching rule that would resolve not only the instant (hard) case, but an additional set of (even harder) cases besides.

As an example, consider a recent case, Wooden v. United States.¹¹⁵ One night, Wooden entered a storage facility, broke through the walls separating multiple storage units inside, and stole goods from each unit.¹¹⁶ Did he thereby commit robbery on one “occasion,” or instead on multiple “occasions” (in the latter case the statute’s mandatory minimum sentencing provision would be triggered)?¹¹⁷ Whatever one concludes, the surest way to ground the outcome exclusively in the text’s clear communicative content would be to adopt a standard-like holding. So, let’s say it’s a close case, but you ultimately think the burglaries occurred on just one “occasion.” You think the text clearly communicates as much, and you’re deciding between two possible directives consistent with that result:

Standard: At least where, as here, crimes are the same in kind, take place in rapid succession, occur over the course of no more than a few hours, [etc.], they take place on one “occasion”; or

Rule: All crimes that, as here, were committed on a single calendar date, take place on one “occasion.”

The former, standard-like holding is less likely to stray from what the text clearly communicates via its use of the term “occasions.” To be sure, the latter, more rule-like interpretation might ultimately be preferable in light of the statute’s underlying policy purposes, considerations of administrative efficiency and consistency, and so on.¹¹⁸ And in easy cases, it may be possible to establish rules that reach far beyond the instant case without straying from the text’s core, “clear” communicative import. But the harder the case, the less room there will be for the modern textualist judge to venture further beyond that core communicative import than is necessary to resolve the parties’ dispute.

B. The Basic Argument Illustrated: Supreme Court Terms 2020–2022

Appellate litigation brings to the fore the vagueness latent in ordinary communication. Where there are potential borderline cases presenting hypothetical line-drawing problems, there are actual litigants with actual cases calling for the relevant lines to be drawn. So, it should come as no surprise that in the cases generating divided Supreme Court opinions, the disputed statutory terms are typically vague and standard-like. We’ve just seen one recent example, Wooden v. United States.¹¹⁹ Now we’ll see numerous others, all similarly drawn from the 2020, 2021, and 2022 Supreme Court terms.¹²⁰

1. The Pervasiveness of Standards in the Statutory Provisions that Divide the Court

One common source of vagueness is what I’ll call statutory “relationship requirements.” In cases concerning statutory relationship requirements, the question is whether a given thing, X, bears some vaguely specified, standard-like relation to another thing, Y. For example, a recent blockbuster environmental case, Sackett v. EPA,¹²¹ turned on whether the Sacketts’ wetlands (X) were “adjacent to” a particular body of water (Y).¹²² As a matter of ordinary language and understanding, the term “adjacent” is vague, imprecise—in short, standard-like. Whether House X is “adjacent” to House Y depends on how far apart they are (Ten feet? Ten miles?), the presence of various types of structures in between them (Bushes? Streets? Other houses?), and so on. The same goes for wetlands and bodies of water.

Here are additional examples of similarly standard-like statutory relationship requirements at the center of divided opinions from the 2020–2022 terms:

“In relation to . . . ” (Dubin)¹²³

An aggravated identity theft statute applies only if the defendant “used” patients’ means of identification “in relation to” certain offenses, including healthcare fraud. The defendant submitted fraudulent Medicaid bills for services that hadn’t been rendered. The bills contained patient I.D. numbers. Did the defendant “use” patients’ means of identification “in relation to” healthcare fraud (thereby committing aggravated identity theft), even though he didn’t pretend to be those patients? More generally: When, and in virtue of what, does one “use” something (X) “in relation to” something else (Y)?

“Relating to . . . ” (Pugin)¹²⁴

A statute permits removal of noncitizens convicted of “offenses ‘relating to obstruction of justice.’ ”¹²⁵ The petitioner was convicted of an offense for dissuading a witness from reporting a crime. Did this offense “relate to” obstruction of justice, even though there was no pending or active legal proceeding at the time of its commission? More generally: How close must the relation be between one’s offense and obstruction of justice for the former to “relate to” the latter?

“Relate[] to . . . ” (Rutledge)¹²⁶

ERISA preempts state laws that “relate to” ERISA plans. A state law regulating pharmacy reimbursements effectively increased the cost of ERISA plans. Did the law “relate to” ERISA plans? How close must the relationship be between a state law and an ERISA plan for the state law to “relate to” the ERISA plan?

“Regarding . . . ” (Patel)¹²⁷

A statute provides for the discretionary granting of relief in immigration proceedings but strips federal courts of jurisdiction to review “any judgment regarding the granting of relief.” An immigration judge’s decision mistakenly found that the petitioner was ineligible to be considered for discretionary granting of relief. Did that judgment “regard[] the granting of relief”? When does a judgment “regard” a given issue?

“On the basis of . . . ” (Marietta)¹²⁸

A statute prohibits any medical plan from “differentiat[ing] in the benefits it provides between individuals . . . on the basis of” those individuals’ having end-stage renal disease. The defendant’s medical plan limited benefits for dialysis. Nearly everyone with end-stage renal disease, and hardly anyone else, undergoes dialysis.¹²⁹ Did the defendant’s plan therefore differentiate “on the basis of” patients’ having end-stage renal disease? When does differentiation “on the basis of” one thing constitute differentiation also “on the basis of” another, highly correlated, thing?

“On the ground of . . . ” (Students for Fair Admissions)¹³⁰

The Civil Rights Act forbids certain schools from denying admission to applicants “on the ground of race.” The defendant schools factored applicants’ race into their “holistic review process” for admissions.¹³¹ Did they thereby deny admission to some applicants “on the ground of race”? How central to or influential in a decision must a given factor be for the decision to have been made “on the ground of” that factor?

“Pursuant to . . . ” (BP P.L.C.)¹³²

A statute allows appellate review of orders remanding a case to the state court “from which it was removed pursuant to section 1442 or 1443.” The defendant had premised removal on multiple grounds, including, but not limited to, sections 1442 and 1443. Had the case been removed “pursuant to” sections 1442 and 1443? When is a decision premised on multiple grounds made “pursuant to” a subset of those grounds?

“Secured by . . . ” (Talevski)¹³³

A federal law conditions federal funding on a state’s protection of certain rights of nursing home residents. A state that accepts federal funds violated those rights. The petitioner nursing home resident sued under 42 U.S.C. § 1983, which provides a cause of action for deprivation of “any rights . . . secured by” federal “laws.” Were the rights at issue, which the petitioner possessed by virtue of the state’s acceptance of the federal law’s terms, “secured by” the federal law? More generally, when are statutory rights whose existence is contingent on events beyond the mere passage of the statute, “secured by” the statute?

Each of these cases concerned a standard-like expression. To elaborate, let’s return to the first highlighted case, Dubin, concerning the use of another’s I.D. “in relation to” healthcare fraud.¹³⁴ “In relation to,” like the other relational terms discussed above, is vague.¹³⁵ There are cases in which it seems clearly to apply: For example, one clearly “uses” another’s I.D. “in relation to” healthcare fraud when one obtains healthcare-related compensation owed to the other person by presenting their I.D. and impersonating them. And there are also cases in which it seems clearly not to apply: For example, one doesn’t “use” another’s I.D. “in relation to” healthcare fraud by presenting it to a bartender the day before one wakes up hungover and grumpily decides to commit healthcare fraud. But there are a great many borderline cases.¹³⁶ And there is no clear line separating the uses of others’ I.D.s that are “in relation to” healthcare fraud or any other predicate offense, from those that aren’t. Instead, and more generally, once we determine the relevant context, we have only an intuitive standard-like set of factors that influence whether we view one thing as happening “in relation to” another.¹³⁷ The same goes for each vague relationship requirement at issue in the above highlighted cases.

A similar point holds for a host of additional statutory provisions at issue in the dataset’s cases. Some contain nouns with fuzzy borders. We’ve seen one such example already: Wooden’s interpretation of the term “occasions.”¹³⁸ Here’s another: In Niz-Chavez, the Court interpreted the statutory phrase, “a notice to appear.”¹³⁹ Before the government can hold a removal hearing, an immigration law requires that it serve “a notice to appear” listing the charges and the time and place of the hearing.¹⁴⁰ The government served Niz-Chavez one document with the charges, then, two months later, a separate document with the time and place of his hearing.¹⁴¹ Did the government serve “a notice to appear” containing all the required information?¹⁴² More generally, when do communications comprise “a” single “notice”? As a matter of ordinary language and concepts, the answer is: It depends on a standard-like balancing of multiple factors. (Was the information written on a single sheet of paper? If multiple, were they delivered in separate envelopes? At separate times? How much time elapsed between the deliveries? And so on.).

Or consider HollyFrontier, interpreting the term “extension.”¹⁴³ A law initially exempted small refineries from certain requirements. It also authorized them to apply for “extensions” to that initial exemption. Some small refineries let the initial exemption lapse.¹⁴⁴ Were they still eligible to apply for “extensions” of it?¹⁴⁵ More generally, under what circumstances may a lapsed time period (whether a homework deadline or a regulatory exemption) be “extended”?¹⁴⁶ Perhaps after thirty years of nonexempt operation, it would make little sense to describe a new period of exemption as an “extension” of the old one.¹⁴⁷ But what if a refinery instead applies for an extension one day after the original one lapsed?¹⁴⁸ And so the line-drawing problems, and the standard-like factors that influence their resolution, emerge—in HollyFrontier, in Niz-Chavez, and in various other divided cases concerning similarly vague nouns.¹⁴⁹

At other times, the Court’s divided statutory interpretation decisions concern vague adjectives and adverbs.¹⁵⁰ Under what circumstances, for example, is a given remedy “inadequate or ineffective”?¹⁵¹ When is an error “clear and unmistakable”?¹⁵² As with the cases discussed already, it strains credulity to claim that through these explicitly vague terms, Congress communicated directives that are implicitly rule-like so that the justices’ task is simply to find the bright-line rules that these vague phrases communicate sub silentio. If there are to be bright-line rules for the justices to apply, the justices will have to make them, not find them in the text Congress enacted.¹⁵³

To be sure, one could try to support a rule-like interpretation of at least some subset of these disputed statutory terms by construing them literally. For example, one could interpret the term “unmistakable error” literally to be an impossibility, since in all appellate cases concerning errors, at least the actor who erred mistook his error for non-error.¹⁵⁴ The resulting directive, aimed at “unmistakable error,” is very rule-like: There are no fuzzy borders because it simply applies to nothing. Or, returning to Dubin, one could contend that a defendant’s fraudulent use of another’s I.D. necessarily “relates to” his healthcare fraud, no matter how distant the two events may seem. Construed literally, after all, Dubin’s acts throughout his life bear at least the following “relationship” to each other: They are acts of Dubin.¹⁵⁵ The resulting (ridiculously literal) interpretation is once again rule-like: The statute clearly applies whenever the same person commits both identity fraud and healthcare fraud, no matter how trivial the “relationship” between the two events. But modern textualism does not advocate literalism; it advocates interpreting language the way a reasonable, ordinary reader would understand it in context. And often enough, terms that might appear rule-like when construed literally, without context, may turn out, in context, to be more standard-like than meets the eye.

None of this is to say that a literal, rule-like interpretation is always incorrect as a matter of ordinary public meaning.¹⁵⁶ Consider Brnovich v. DNC, a recent case concerning the Voting Rights Act (VRA) requirement that voting processes be “equally” open to minority and nonminority voters.¹⁵⁷ As it happened, nobody on the Brnovich Court defended a literal interpretation of the VRA’s voting equality guarantee.¹⁵⁸ Justice Kagan, writing in dissent, “agree[d] with the majority that ‘very small differences’ among racial groups do not matter . . . [T]here may be some threshold of what is sometimes called ‘practical significance’—a level of inequality that, even if statistically meaningful, is just too trivial for the legal system to care about.”¹⁵⁹ Additionly, Justice Kagan construed the statute as containing an implicit exception for voting practices “necessary to support a strong state interest.”¹⁶⁰ Perhaps neither the majority nor the dissent tracked the statute’s ordinary public meaning in this regard. Perhaps the better reading, in context, really was the more literal one.

Still, for present purposes, the point is simply that in context, some literally rule-like directives are at least arguably implicitly standard-like. And importantly, harkening back to the “implied-rules versus implied-standards asymmetry” in ordinary communication discussed in Section IV.A.1.b, the converse is rarely true: Literally standard-like directives are hardly ever implicitly rule-like. This asymmetry further contributes to the tendency of ordinary-public-meaning-based interpretation to produce standards rather than rules.¹⁶¹

2. Sticking with What the Text Clearly Communicates

Each of the above cases also illustrates the second prong of this Section’s basic argument: If one seeks to resolve these cases without relying on anything beyond the text’s “clear” communicative content, one will be drawn to relatively narrow, fact-intensive, standard-like interpretations, rather than broader-sweeping rule-like ones. To illustrate, it will help to look at a few of the cases discussed above and contrast the narrower standard-like directive that modern textualism would favor with the broader, more rule-like one that the justices instead created.

Start with Sackett. Every member of the Court agreed on the outcome: The Sacketts’ wetlands aren’t “adjacent to” navigable waters and therefore aren’t within the CWA’s scope.¹⁶² In short, the Sacketts win.¹⁶³ The justices’ opinions differed only over the rule or standard that should apply going forward.¹⁶⁴ The majority opinion effectively shunted the standard-like term “adjacent” aside.¹⁶⁵ Under the more rule-like test that the majority imposed, “the CWA extends to only those ‘wetlands with a continuous surface connection to’ ” navigable waters, “so that they are ‘indistinguishable’ from those waters.”¹⁶⁶ In other words, wetlands that are merely “adjacent” to—that is, near or close to—navigable waters, but that do not adjoin them, are no longer covered by the CWA.¹⁶⁷

Now perhaps imposition of this rule was ultimately justified in light of concerns that the alternative tests’ “open-ended factors” would “provide[] little notice to landowners,” as the majority emphasized.¹⁶⁸ Still, if one were to look for something that was both clearly communicated by the text and case-dispositive, one needn’t create this broad-sweeping rule which resolves not only the Sacketts’ case but a whole host of closer cases besides (cases in which, for example, only a tiny, porous, temporary, man-made barrier separates the wetlands from navigable waters).¹⁶⁹ It strains credulity to insist, as the majority did, that the statutory text “clearly” communicates such a rule when four justices believe that it doesn’t even do so unclearly.¹⁷⁰ Setting forth a broader rule-like directive risks error, and does so unnecessarily, since one could instead resolve the case on the grounds that wetlands are not “adjacent” to navigable waters at least where, as here, they fail to meet even the more standard-like interpretation that four members of the Court take the statute to communicate.¹⁷¹ The point was not lost on the concurring justices, who sternly criticized the majority for unnecessarily departing from the clear communicative content of the statutory text—not for reaching the wrong outcome, but for replacing the standard Congress enacted with a judge-made rule.¹⁷²

In Brnovich, the Court’s conservative majority showed a similar proclivity for judicial rule creation.¹⁷³ All the justices, liberals included, agreed that the VRA’s guarantee of “equally open” voting processes could not be taken literally.¹⁷⁴ Consequently, the Court would have to be in the business of drawing lines. The dissenting opinion, in arguing that the particular voting laws at issue ran afoul of the VRA’s “equality” guarantee, did not purport to establish a bright-line rule that would resolve even closer cases than the one at bar.¹⁷⁵ In contrast, the majority opinion went beyond the kind of fact-intensive, standard-like analysis necessary to support its conclusion, and instead created rules whose hard edges were difficult to discern in the statutory text.¹⁷⁶ To quote the dissent:

Start with the majority’s first idea: a “[m]ere inconvenience[]” exception to Section 2. Voting, the majority says, imposes a set of “usual burdens”: Some time, some travel, some rule compliance. And all of that is beneath the notice of Section 2—even if those burdens fall highly unequally on members of different races. But that categorical exclusion, for seemingly small (or “usual” or “[un]serious”) burdens, is nowhere in the provision’s text.¹⁷⁷

The Brnovich majority could plausibly have hemmed closer to the statute’s clear communicative content without having to reach a different case outcome, but it instead elected to add more rule-like legal content than necessary.¹⁷⁸

As another example, consider the justices’ dispute in Niz-Chavez over the phrase, “a notice to appear.”¹⁷⁹ The majority held that the statute’s “ordinary meaning” was “clear” and relatively rule-like: Multiple documents could never constitute “a” single notice.¹⁸⁰ The dissent called the majority’s single-document rule “atextual”: In “ordinary parlance,” two pieces of paper arriving “on the same day but in different envelopes” could comprise “a notice,” yet the majority’s rule pretends otherwise.¹⁸¹ Regardless of whether, on the facts of this case, the separate documents delivered two months apart constituted “a notice” containing all of the required information—that is, regardless of whether the majority or the dissent reached the correct outcome—the majority crafted a rule that would avoid much of the standard-like vagueness in the statutory text. The majority’s rule does so by reaching further than necessary, since a more minimalist, albeit more standard-like, interpretation would have left unresolved the kinds of closer cases hypothesized by the dissent.¹⁸²

There are many more examples in the dataset’s three terms alone.¹⁸³ But the point isn’t to exhaustively catalogue each justice’s infidelity to modern textualism’s dictates. It’s instead to see, by way of contrast with what the Court typically does, how frequently modern textualism would, if followed, lead to the adoption of relatively fact-intensive, incremental, standard-like legal directives. And the answer is very often. At least in the kinds of close cases that have divided the justices in recent terms, the pressure modern textualism places on judges to resolve cases based only on the text’s clear communicative import virtually guarantees it.

C. Textualists’ Responses

It’s rare for the justices to confine themselves to the relatively low-power role of standard-appliers in discreet cases. There is far greater power to be had in rule creation.¹⁸⁴ For better or worse—a question taken up in Part V, below—the justices hardly shy away from exercising that power.¹⁸⁵ The Court’s self-avowed textualists are no exception. If anything, they appear more willing than their less textualist colleagues to replace Congress-made standards with justice-made rules.¹⁸⁶ Perhaps this is unsurprising given the conventional wisdom that judges who self-identify as textualists tend to prefer rules.¹⁸⁷ But if this Article’s main claim is correct—if the rule of modern textualism would tend to produce standards—then self-avowed textualists must either deny or justify their own rule-creation practices. This Section considers both strategies and argues that each ultimately fails.¹⁸⁸

1. Denial

a. Meaning-Splitting

One common strategy for avoiding the appearance of judicial rule creation is to treat vagueness as ambiguity. Recall that ambiguity forces the interpreter to select between two or more distinct “meanings” of a given term. Does the directive “bring me a bunch of chairs” refer to “chairs” in the furniture sense or, instead, the head-of-an-academic-department sense? The directive only refers to one or the other type of chair; the judge merely clarifies which one. Modern textualism is entirely compatible with ambiguity resolution.¹⁸⁹ The trick, then—the way to avoid the appearance of rule creation in cases concerning vague, standard-like terms—is to speak as if in ordinary language the vague terms have multiple distinct, naturally occurring “meanings,” and the directive the decision establishes is the product of clarifying which of these discreet meanings the statute uses.¹⁹⁰

In Sackett, for example, the majority contended that “[d]ictionaries tell us that the term ‘adjacent’ may mean either ‘contiguous’ or ‘near.’ . . . [A]nd here, only one . . . meaning [viz. ‘contiguous’]” makes sense in the context of the statute.¹⁹¹ By finding a dictionary that “splits” adjacency into these two discrete “meanings,” rather than “lumping” the two together, as most dictionaries (and common understanding) do, the majority can present its rule—that wetlands must be contiguous with navigable waters to be “adjacent” to them—as simply a context-based clarification of which of the two discrete “meanings” of “adjacent” Congress invoked.¹⁹² This way the majority avoids the “serious vagueness concerns” to which adjacency-as-nearness would give rise and does so merely by resolving a purported ambiguity.¹⁹³

The problem is that, in ordinary parlance, there are not these two separate “meanings” of “adjacent”; there are merely various degrees of closeness, and a line-drawing problem concerning how close something must be in order to be adjacent.¹⁹⁴ As is so often the case, the splitting of “adjacent” into two different “meanings” is not a reflection of some stark cleavage in ordinary usage, it is instead an artificial division that serves to justify judicial rule creation under the guise of disambiguation.¹⁹⁵

Of course, the Court sometimes resists the move. In Wooden, the government’s briefing argued unsuccessfully that there are two distinct meanings of “occasion” from which the Court must select: one vague meaning according to which nonsimultaneous events may constitute a single “occasion” (e.g., ‘the wedding,’ comprised of a ceremony followed by a reception, ‘was a lovely occasion’), and another nonvague meaning according to which only simultaneous events may take place on a single “occasion.”¹⁹⁶ According to the government, only the latter, rule-like meaning made sense in the context of the statute.¹⁹⁷ While this led the parties to spar over which of the various dictionary definitions articulated the relevant “meaning,”¹⁹⁸ the Court didn’t buy into this framing. Instead, faced with a transparently vague term, Justice Kagan’s majority opinion explained that the government’s exclusive focus on precise simultaneity was not grounded in ordinary usage.¹⁹⁹ Rather than pretending to resolve an ambiguity, the Court thus acknowledged the vague, standard-like nature of the statutory term at issue. Perhaps the resulting “multi-factor test provides too ‘little guidance,’ ”²⁰⁰ but, as Justice Kagan quipped, “we did not choose the test; Congress did.”²⁰¹ Precisely.²⁰²

b. Legal Meaning to the Rescue?

The argument for this Article’s basic descriptive claim relies on the notion that “ordinary public meaning” is often standard-like. But modern textualism allows that the relevant meaning, for purposes of interpreting at least some statutory provisions, is not their ordinary meaning but instead their “technical,” “legal” meaning.²⁰³ If legal meaning is typically less standard-like than ordinary meaning, then in at least some cases, modern textualism might be less prone to producing standard-like legal content than this Article’s argument would suggest.

In response, it’s worth noting as a preliminary matter that, in the divided Supreme Court cases comprising this Article’s dataset, there are relatively few cases in which one or more justices explicitly claim that the statutory provision employs a term’s legal meaning, as distinct from its ordinary meaning.²⁰⁴ And in those cases, other justices often disagree, insisting that the term’s ordinary meaning governs.²⁰⁵ The “legal meaning” response, therefore, may not be available in very many of the divided cases comprising the dataset, although precisely how many is debatable.²⁰⁶ Additionally, when a provision’s “legal meaning” is at issue, that meaning is often closely related to its ordinary meaning, so that (typically standard-like) ordinary meaning continues to exert some influence—although just how much influence is again often a subject of disagreement.²⁰⁷

Still, even assuming that legal meaning is wholly distinct from ordinary meaning, there remains a problem for rule-craving modern textualists. At least in recent divided Supreme Court cases, the legal meaning at issue often turns out not to be meaningfully more rule-like than ordinary meaning.²⁰⁸ In Rutledge, for example, Justice Thomas notes that in prior cases the Court has crafted its own “test” for whether a state statute “relates to” ERISA and is therefore preempted.²⁰⁹ Perhaps this “test”—whose creation in earlier cases was based on the Court’s explicit determination that “ ‘relate to’ is so ‘indeterminate’ that it cannot ‘give us much help drawing the line’ ”—constitutes a “technical, legal” meaning of “relates to,” at least in the context of the ERISA statute.²¹⁰ Still, Justice Thomas complains that the Court-created “test” remains “vague” enough to “offer[] ‘no more help than’ the ‘relate to’ one” found in the statute’s text, despite “recent efforts” to render this arguable technical-legal meaning “more precise.”²¹¹ Similarly, in Ysleta v. Texas, Chief Justice Roberts claims that the ordinary meaning of the relevant statutory terms (“regulate” and “prohibit”) is less vague than their “term-of-art” meaning.²¹² In Percoco, Justice Gorsuch contends that the technical, legal-sounding phrase “honest-services fraud” remains highly vague despite its origins as an arguable term of art, and despite decades of common-law style judicial decisions attempting to render the phrase more precise.²¹³ And as the Court’s decisions in Google v. Oracle and Andy Warhol Foundation v. Goldsmith illustrate, all agree that the Copyright Act’s “fair use” test—an open-ended, multifactor balancing test with common-law origins—remains very standard-like, even if its terms have taken on a technical legal meaning through a substantial body of common-law-style precedent.²¹⁴

None of this is to say that statutory terms with standard-like ordinary meanings never have rule-like legal meanings. Indeed, if judges can simply create these rule-like “legal” meanings through decisions purporting to interpret standard-like terms, then many seemingly standard-like statutory phrases might, through a one-shot big bang of judicial rule creation, come to bear a rule-like “legal” meaning. But even allowing such bootstrapping, the resulting rule-like terms, having acquired a clear, rule-like “meaning,” rarely appear to be the subject of divided Supreme Court cases. Congress provides a steady enough supply of standard-like provisions to keep the Supreme Court’s docket well stocked.

2. Justification

a. Congress’s Implicit Preference for Judge-Made Rules?

Perhaps there remains an alternative route for those seeking to square judicial rule creation with modern textualism. This one comes from Justice Scalia’s playbook. In The Rule of Law as a Law of Rules, Scalia claims that a justice’s “reduction of vague congressional commands into rules that are less than a perfect fit is not a frustration of legislative intent because that is what courts have traditionally done, and hence what Congress anticipates when it legislates.”²¹⁵ In this way, one might seek to embrace and justify judicial rule creation as consistent with, or perhaps even required by, modern textualism.

But that strategy fails for four reasons. First, if that kind of historical bootstrapping works as a justification, then it justifies all manner of historically rooted nontextualist practices.²¹⁶ It may be true that Congress expects courts to continue behaving as they have in the past. But modern textualism would collapse if it therefore required judges to be nontextualists when interpreting statutes passed during predominantly nontextualist times.²¹⁷ If courts have read purpose-based exceptions into clear statutory language (as they have²¹⁸), or consulted legislative history (as they have²¹⁹), then does modern textualism require judges to continue doing so, on the theory that the enacting Congress would have expected as much? For modern textualism to maintain coherence, the answer must be no.²²⁰

A second major flaw in the proposed justification is that it posits some knowable congressional intent beyond that expressed in the text. Sure, Scalia argued in The Rule of Law as a Law of Rules, Congress may not have said that the Court should turn its standards into rules. But Congress nonetheless intended for the Court to do so.²²¹ But for modern textualists, such recourse to unexpressed congressional intent won’t do.²²² As now-Justice Barrett has written, “[T]he foundation of modern textualism is its insistence that congressional intent is unknowable.”²²³

Third, even if we were to allow that Congress has a knowable intent, there is little evidence that Congress’s intent—with respect to all standard-like language generally or the particular statutory provisions at issue in recent divided cases—was not for the Supreme Court to apply the standards Congress enacted but instead for the Supreme Court to convert them into justice-made rules.²²⁴ Congress knows how to explicitly delegate rulemaking authority; it often does so to executive agencies by, for example, enacting statutory provisions that expressly grant an agency authority to engage in rulemaking.²²⁵ Yet such express grants of rulemaking authority to the Court, while not unheard of, are quite rare.²²⁶ Furthermore, even when Congress does not explicitly delegate rulemaking authority to executive agencies, there may be compelling reasons to think that a rational Congress would have intended implicitly to do so—considerations of agency expertise, political responsiveness, and so on.²²⁷ But these reasons are, at the very least, less clearly applicable to the Supreme Court.²²⁸ Again, why infer from congressional silence an intent to encourage judicial rulemaking?²²⁹

Fourth and finally, the proposal that Congress has implicitly delegated rulemaking authority to courts sits uneasily with modern textualism’s vision of the separation of powers, in which the judiciary is supposed to play only a minimal role.²³⁰ To the greatest extent possible, modern textualism instructs judges to be umpires, not rulemakers.²³¹ The separation-of-powers concerns animating the modern Court’s skepticism of congressional delegation to agencies—delegation that is oftentimes more explicit and more justified²³²—counsels at least as much skepticism of judicial rulemaking.

b. Supreme Court Rule Creation as Managerial Standard Application

One final potential justification for modern textualist rule creation goes as follows: Perhaps appellate courts should create whichever form of directive—rule or standard—will lead lower courts to arrive at case outcomes that most closely track the outcomes that an ideal interpreter, applying the standard-like language Congress enacted, would reach.²³³ And perhaps appellate rule creation, at least at the Supreme Court level, best accomplishes this goal. In other words, somewhat counterintuitively, maybe the surest way to generate lower-court outcomes that track statutes’ standard-like terms is for appellate courts to provide lower courts a more rule-like proxy for those statutory terms, rather than leaving them to more directly apply the statute’s actual terms.²³⁴

This proposed justification might work in some hypothetical court system, but there’s little reason to believe that it rests on an accurate picture of our actual courts. As an initial matter, for the justification to work, lower courts must be failing to accurately apply the standard-like statutory terms Congress enacts. Maybe they’re unable to do so, given the complexity of the task, or maybe they’re unwilling to do so, given the temptation to reach their preferred outcomes. Let’s grant this for the sake of argument. Still—and far less plausibly—the proposed justification only works if Supreme Court justices are able and willing to perform a much more fraught task: formulating rule-like proxies that tend to produce outcomes that track Congress’s standard-like terms better than would direct application of those standard-like terms. If the lower courts’ task in applying standards is difficult and bias-prone, the Supreme Court’s task in crafting such rules is even more so. Why entrust the Supreme Court with this far more difficult, discretionary, and consequential determination?²³⁵ Before modern textualism can avail itself of this proposed justification, there must be reason to believe that the justices’ highly discretionary work of rule-creation actually leads to less distortion of Congress’s standards than would the lower courts’ application of those standards themselves.²³⁶

V. Reassessing the Interpretive Landscape as It Stands

We’re now well-positioned to see what the statutory interpretation literature’s decades-long focus on text versus purpose has led us to overlook. The most useful cases for illustrating the traditional textualism-purposivism divide involve clear, rule-like statutory provisions that produce outcomes at odds with the statute’s apparent purpose.²³⁷ But at least under current conditions, such cases are relatively rare. As we’ve seen, far more common are cases concerning standard-like statutory provisions. And in these cases, we find the Court’s textualist and pluralist Justices alike converting those standard-like provisions into more rule-like directives—albeit in different ways.

As Section V.A explains, this conversion of standards into rules is an important exercise of power—even more so than the conversion of rules into standards, the main sin of which textualists have long accused their rivals. Given the frequency of Supreme Court rule creation, and the substantial exercise of power it entails, we ought to scrutinize the way these different theories lead judges to do it—both to understand the practical differences between current textualist and nontextualist practice as a descriptive matter, and to normatively evaluate those differences.

So, what are these differences? As Section V.B argues, when modern textualists create rules, they aspire to do so from a position of willful ignorance, unlike what we demand from other rulemaking institutions. This marks a significant distinction between modern textualists-in-practice and their more pluralist colleagues. Modern pluralist rule creation openly incorporates the kinds of concerns that could desirably bridge the gap between standard-like text and rule-like legal directive. Modern textualism leaves us guessing how and why that gap was bridged. Worse, it produces arbitrary and unpredictable rules.

A. The Rulemaker’s Power

As we’ve noted, determining the outcome of individual statutory cases is, at the Supreme Court level, often far less consequential than determining the rule or standard that will govern future cases. And as the following table explains, when it comes to making that determination, the greatest opportunity to exercise power arises in cases where one can replace a standard-like provision with a rule-like directive of one’s own making.

Table 1: Amount of Power Exercised by Supreme Court Justices in Choosing Form of Legal Directive

Rule Application

Standard Application

Standard Creation

Rule
Creation

Description

Statute establishes a rule, judge applies it.

Statute establishes a standard, judge applies it.

Statute establishes a rule, judge creates a standard.

Statute establishes a standard, judge creates rule.

Amount of Power Exercised

Low

Medium

Court exercises discretion in hard cases to the extent the statute requires, but Court leaves other actors (lower courts, agencies, jurors, etc.) to do likewise.

Medium/High

Court may reach an otherwise unreachable outcome in the case at hand, but Court leaves other actors to exercise discretion in hard cases to the extent the judicially created standard requires.

High

Court may reach an otherwise unreachable outcome in the case at hand, and Court exercises ex ante the discretion that other actors would otherwise have exercised in further hard cases.

We’ll move in the table from left to right, beginning with the “Rule Application” column. Nobody disputes that rule application is a relatively low-power act. But what about the next column, “Standard Application”? Could a Supreme Court justice, contrary to what the table says, actually exercise less power, and more restraint, by converting the legislature’s standard into a rule (i.e., by going to the far-right, “Rule Creation” column), than by simply applying that statutory standard?

Justice Scalia apparently thought so. In The Rule of Law as a Law of Rules, Scalia contended that a Supreme Court justice’s mere application of a standard-like provision, “ ‘making’ as little law as possible . . . to decide the case at hand,” shows less “judicial restraint” than “adopt[ing] a general rule.”²³⁸ The reason? “Only by announcing rules do we hedge ourselves in.”²³⁹ Judicial rule creation renders the rule-creating judge “unable to indulge” their preference for this or that outcome when the next case involving the same standard-like provision comes along.²⁴⁰

But Scalia’s apologia for justice-made rules is effectively rebutted by realities he acknowledges a page earlier in the same essay. As Scalia notes, the Supreme Court hears astonishingly few cases.²⁴¹ A justice’s conversion of a statutory standard into a justice-made rule effectively exercises the power that would otherwise be left to others, including other present and future justices, lower court judges,²⁴² executive agencies, and jurors.²⁴³ Whatever power a Supreme Court justice’s rule creation might effectively foreclose him from exercising in a later case, it pales in comparison to the power he exercises in the initial act of creating the binding rule that everyone else must henceforth follow. Compared to the act of applying a statutory standard, the Supreme Court justice’s act of rule creation is anything but an exercise of restraint.

Finally, what about the act of converting a statutory rule into a judge-made standard—the main sin of which textualists have historically accused purposivists—located in the table’s column second from the right? When this happens, it may indeed represent a significant exercise of power. Still, lower courts, among other actors, possess greater discretion in applying a standard than they would a rule. By establishing a standard-like directive for lower courts to apply, an appellate court dictates fewer case outcomes than it does when it converts a standard into a rule.²⁴⁴ In any event, as noted at the beginning of this Part, converting a rule into a standard occurs less frequently on today’s Supreme Court than one might have expected, even if it was more common in earlier eras of stronger purposivism.²⁴⁵ The Court’s self-described “textualists” and their more openly pluralist colleagues rarely flout clear, rule-like statutory language. Under current circumstances, the far more frequent exercise of power—indeed, the one that is so common as to largely escape our notice—is also the biggest one: the conversion of statutory standards into judge-made rules. The way this power is exercised, and the rules that result, deserve scrutiny; they mark a consequential and underexamined difference between the two main approaches to statutory interpretation as practiced in the Court’s closest cases.

B. Willfully Ignorant Rule Creation

So, if the conversion of legislative standards into judge-made rules is an especially consequential move, how do these theories differ in the way they do it? When textualists purport to derive a rule from the ordinary public meaning of standard-like language, their rule creation is less constrained by the kinds of purposive and pragmatic considerations that guide modern pluralist judicial rule creation. That’s important. Modern textualists aspire to make rules in a uniquely information-poor way. They exercise significant power while seeking to remain willfully ignorant as to the sorts of things we typically want rulemaking institutions to consider. For example, we typically want legislatures—our primary source of legal rules—to make rules that pursue valuable policy purposes, reach desirable outcomes, prevent easy regulatory evasion, and so on. Likewise, when executive agencies make rules, we expect them to do so using their own expertise, in pursuit of the policy purposes the statute seeks to further, in a manner that prevents easy regulatory evasion, and so on.²⁴⁶ Once we see that some person or body is making rules, we see the desirability of their taking various practical considerations into account. Yet when textualist judges make rules, they aspire to do so willfully ignorant of the ramifications. And this aspect of modern textualist decisionmaking sometimes appears to influence the content of the rules that modern textualists end up creating.²⁴⁷

The willfully ignorant nature of modern textualist rule creation may comfort some, including perhaps those especially suspicious of judicial discretion. But it strikes me as cold comfort. After all, something must be bridging the gap between the input of standard-like statutory language and the output of rule-like legal directives. I’m unsure which is the more charitable interpretation of what’s filling the gap. Motivated reasoning? Random chance? The kinds of pluralist considerations that other methods consult openly? Regardless, the main point is this: Rulemakers do not exercise less power when they exercise it from a position of ignorance, even if their subjective experience is one of being “constrained.” Their willfully ignorant exercise of power is no less consequential. And given the likelihood that it will produce a rule that’s either arbitrary and unpredictable or else premised on unstated considerations, it is no less—and potentially a great deal more—dangerous than a more informed and/or forthright exercise of that same power would be.²⁴⁸

VI. Evaluating “Standard” Textualism

The previous Part sought to highlight and evaluate an underappreciated difference between modern textualism-in-practice and modern pluralism—namely, the way each approach makes rules. This Part turns to evaluating modern textualism-in-theory—that is, the more theoretically pure form of modern textualism that would refuse to convert standards into rules. It argues that even though textualists have historically favored rule-like law, many textualists may find modern textualism-in-theory—what I’ll call “standard textualism”—more desirable than it appears at first blush. In particular, standard textualism turns out to further the very same rule-of-law and democratic accountability values that led textualists like Justice Scalia to extoll rule-like law.²⁴⁹ Moreover, standard textualism may be surprisingly appealing not only to traditional textualists but also to modern Supreme Court reformers, despite currently prevailing associations of the former with the political right and the latter with the political left.

A. Rule-of-Law Values and Democratic Accountability

Textualists have long assumed that their rule-like method would tend to produce rule-like legal content and in many cases have extolled rule-like legal content itself, typically contending that rule-like law promotes “rule-of-law values” like fair notice and democratic accountability.²⁵⁰ This Article has argued that at least in the kinds of Supreme Court statutory interpretation cases that divide the current Court, modern textualism’s commitment to sticking with the ordinary public meaning of Congress’s enacted text is largely incompatible with a law of rules.²⁵¹ Alternatives to modern textualism, meanwhile, remain compatible with the kind of judicial rule creation that could produce more rule-like legal content.²⁵² Does this mean that modern textualism must cede to rival methods its position, so central to textualists’ self-image, as uniquely promotive of rule-of-law values like fair notice and democratic accountability?

Not necessarily. Here’s the pitch, written in a thoroughly modern textualist register, beginning with rule-of-law values. The key is to see that the statute itself should be the focal point for purposes of fair notice, predictability, nonarbitrary enforcement, and so on—not judge-made law. From the moment the statute is passed, modern textualism ensures that citizens can, to the greatest extent possible, ascertain the statute’s content. In contrast, a regime that routinely replaces such content with judge-made rules renders statutory law something more like Nero’s edicts, “post[ed] high up on the pillars, so that they could not easily be read.”²⁵³ The regulated become unable to rely on the statutory provision itself prior to its conversion into a judge-made rule. Moreover, the resulting judge-made rule inevitably leads to arbitrary and surprising enforcement relative to the standard-like statute it purports to interpret. Indeed, that arbitrariness is a hallmark of rule-based decisionmaking.²⁵⁴ Of course, applications of the rule may appear less arbitrary after the rule has been established. But that’s only if we sweep under the rug the initial big bang of arbitrary discretion that the justices exercised in creating the rule.²⁵⁵

In the end, judicial rule creation—and, by extension, judicial rule application whenever it departs from the statutory standard from which it purportedly sprang—entails at least as much arbitrary and unpredictable exercise of power as does the case-by-case application of legislature-made standards. Judicial rule creation only furthers fair notice, predictability, and nonarbitrary enforcement if we look not to the statute itself, nor even to the statute plus any case-based applications of it, but to the announcement of some more rule-like directive in a particular judicial decision. For those looking to the statute, it will be a rude surprise when enforcement occurs under a rule that reaches a different outcome than the statutory standard would have dictated.

Standard textualism may also facilitate democratic accountability. To hold a given set of congresspeople accountable for the statutory language they enact or fail to enact, voters must be able to evaluate statutes prior to their rulification in some eventual Supreme Court decision.²⁵⁶ Standard textualism gives voters more of this ability than does a method that licenses judicial rule creation. Granted, to the extent Congress continues to pass standard-like legislation, it will often be difficult to predict how those standards will be applied down the road. And the judiciary’s refusal to proactively create rules may lead to disarray, with different jurisdictions applying the same standard-like terms in different ways as each muddles through the difficult borderline cases that inevitably appear. But when this happens—and, for democratic accountability purposes, when, at the time of the statute’s passage, we can predict that this will happen—the fault will lie more squarely with Congress.²⁵⁷

In this respect, standard textualism resonates with some textualists’ goal of incentivizing careful statutory drafting.²⁵⁸ Textualists have traditionally highlighted this feature of textualism in the context of judicial refusal to “correct” rule-like statutory provisions by crafting standard-like exceptions in cases where the text’s plain, rule-like meaning would reach a bad outcome.²⁵⁹ But the same logic applies to standard textualism’s refusal to create rules even where the regulated might prefer it to the disarray of standard-based law. Standard textualists can incentivize careful drafting by refusing to “correct” Congress’s choice of standard-like language, even where the benefits of rule-like law—greater uniformity, predictability, appearance of equal treatment, and so on—might seem desirable going forward. If there should be a rule, standard textualism insists that Congress, or an agency to which it clearly delegated rulemaking authority, be the one to make it or else suffer the consequences by way of political accountability.²⁶⁰

B. Supreme Court Reform and “Progressive Textualism”

That, anyway, was the pitch written in a register harmonious with modern textualist rhetoric. But now here’s a pitch written in a rhetoric that, as a contingent matter, carries a different ideological valence: modern Supreme Court reform.²⁶¹ Recent Court reform efforts have taken many forms, and it risks oversimplification to paint their various proposals—from term limits to jurisdiction stripping and so on—with too broad a brush.²⁶² Still, they are all, generally speaking, a response to one core perceived problem: an unaccountable nine-member body exercising too much power.²⁶³ If followed, standard textualism would reallocate that power, leaving more of it to Congress,²⁶⁴ executive agencies,²⁶⁵ lower courts,²⁶⁶ and jurors.²⁶⁷ Perhaps, then, those pushing for Supreme Court reform, typically associated with the political left, ought to embrace standard textualism despite textualism’s historical association with the political right.²⁶⁸

On that note, however, a word of caution: There are practical reasons why structural reforms, more so than mere appeals to theories of interpretation, are likely to remain necessary for reformers hoping to achieve largescale change in the real world. Unilateral disarmament is a sure way of losing power, and would-be “standard” textualists know that. If any given justice refuses to rulify standard-like statutory provisions, other justices can simply fill the resulting void with their own preferred rules. It’s hard to imagine individual justices consistently ceding such power to their colleagues, and even harder to imagine the entire Court acting collectively to cede it to other actors. Still, from the perspective of many modern Supreme Court reformers, even a small shift on the margins in the direction of standard textualism would be desirable relative to the status quo.

The same might be true for progressive legal scholars interested in statutory interpretation theory, some of whom have begun articulating visions for a new “progressive textualism.”²⁶⁹ To date, despite the shared label, these proposals reflect a variety of goals. Some focus on achieving substantively progressive outcomes generally²⁷⁰ or in discrete areas of law²⁷¹ while others propose a more systematic methodological reorientation.²⁷² It’s too early to say how influential the notion of “progressive textualism” will prove. But this Article’s account of standard textualism holds promise as a new, alternative vision of progressive textualism—one with deep roots in traditional textualist theory and with consequences that align with many modern progressive Supreme Court reformers’ goals.

Conclusion

A lot has changed since the 1980s and 90s, when Scalia, Easterbrook, and Manning laid the groundwork for the textualist revolution. Over the decades, by demanding ever stricter fidelity to ordinary public meaning, modern textualism has sought to work itself pure as a rule-like, discretion-minimizing theory of interpretation. The irony is that in doing so, the theory has become uniquely committed to producing standard-like legal content. Far from exorcising the specter of standards, textualists have effectively invited it in, though neither they nor their critics appear to have noticed. Once they do notice, both textualists and their critics might come to find “standard textualism” surprisingly appealing as a prescriptive theory of interpretation.²⁷³

Meanwhile, whatever their normative views, statutory interpretation scholars may come to find unduly narrow much of the literature’s focus on the case outcomes that different interpretive theories produce. In today’s interpretive landscape, the more consequential issue is often whether, and how, different theories purport to derive rule-like directives from the standard-like statutory provisions that are the bread and butter of the Court’s docket. By foregrounding that issue, we can better understand how today’s justices exercise power—and better appreciate what’s so unique about modern textualism.

* Professor of Law, Benjamin N. Cardozo School of Law. For helpful comments, I thank Miriam Baer, Eric Berger, Mitch Berman, Daniel Deacon, Anuj Desai, Alma Diamond, Ryan Doerfler, William Eskridge, Jr., Tara Grove, Felipe Jiménez, Dan Meagher, Joe Miller, David Noll, Victoria Nourse, Richard Re, Mark Seidenfeld, Brian Slocum, Kevin Tobia, Nina Varsava, participants in the annual Legislation Roundtable held at Georgetown Law, workshops at the Cardozo School of Law, University of Georgia Law School, Florida State University School of Law, and University of Illinois School of Law, and a panel on “Methodological Realignments in Statutory Interpretation” held at AALS’s annual conference. For research assistance, I thank Aliza Tresser. For funding, I thank Brooklyn Law School.