Standard Textualism

Authors

James A. Macleod, Benjamin N. Cardozo School of Law

Abstract

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.

Recommended Citation

James A. Macleod, Standard Textualism, 124 Mich. L. Rev. 661 (2026).
Available at: https://repository.law.umich.edu/mlr/vol124/iss4/3