Does Textualism Constrain Supreme Court Justices?

Authors

James J. Brudney
Lawrence Baum

Publication Date

3-15-2026

Abstract

A principal justification for textualism is the constraint hypothesis. Conservative Justices and leading textualist scholars contend that—in stark contrast to reliance on legislative history—focus on the ordinary meaning of enacted text leaves little room for the Justices to be policy-oriented or ideological in their interpretations. This Article represents the first systematic study probing the validity of the constraint hypothesis, one that employs both quantitative and qualitative analysis.

The Article examines the Justices’ reliance on interpretive resources in over 660 statutory decisions in the field of labor and employment, decided by the Burger Court, the Rehnquist Court, and the Roberts Court—during the ascendancy of textualism from 1969 to 2024. Decisions involving the employment relationship (comprising roughly one-fourth of the Court’s statutory docket) make them an especially suitable vehicle for addressing whether increased reliance on the textualist resources of ordinary meaning, dictionaries, and language canons, and sharply diminished reliance on the intentionalist resources of legislative history and purpose, have exerted a constraining effect on ideological decision-making.

Using a series of empirical analyses, we find that the textualist approach has had virtually no constraining effect on the ideological predispositions of the Justices. Our findings are especially robust for majorities authored by conservative Justices in the Rehnquist and Roberts eras. By contrast, and somewhat ironically, there is evidence that conservative Justices in the Burger era were constrained ideologically when authoring majorities that relied on legislative history, not when they relied on ordinary meaning and other textualist resources.

The Article then explores in case-specific terms why textualism seems not to constrain ideological decision-making. We focus on Burger Court decisions in which majority and principal dissent relied on legislative history, and Roberts Court decisions where majority and principal dissent relied on the ordinary meaning of text. The Justices’ persistent disagreements in these two eras are precisely parallel: conflicting interpretations of identical words in text (or identical portions of legislative history) and conflicts over which pieces of text (or of legislative history) are correctly applicable. The disagreements illustrate how reliance on these two resources has been similarly malleable in application by the Justices.

The Supreme Court’s guidance function for lower court judges, practicing attorneys, and the public at large, is predicated in important respects on the asserted objectivity and ideological neutrality of textualism. By establishing that such objectivity and neutrality are not promoted by textualist methods in this large subset of the Court’s statutory decisions, and demonstrating the comparable malleability of ordinary meaning and legislative history in the Justices’ opinions, the Article raises serious questions about the privileged position of the textualist approach.

Recommended Citation

James J. Brudney and Lawrence Baum, Does Textualism Constrain Supreme Court Justices?, 120 Nw. U. L. Rev. 1375 (2026).
https://scholarlycommons.law.northwestern.edu/nulr/vol120/iss5/5