The Great Snail Debate
Or, Justice Breyer Wins Again
I have been writing about our ongoing legal realignment for some years now, but new developments still manage to surprise me.
Two years ago, Justice Breyer wrote a book impugning textualism. His marquee example involved a homely case related in a French newspaper article. A railroad had the following rule: “Passengers cannot bring animals on the train except in a basket, in which case they must buy a ticket for the animals.”
Did that rule apply when a passenger brought on the train snails contained in a basket? The point of this question was to show that the rule’s text, which seems to apply, cannot automatically control the result. Non-textual factors, like purpose and pragmatism, must come to bear.
Last year, Alana Frederick and Judge Kevin Newsom, two insightful and delightfully creative legal thinkers, emphatically rejected Breyer’s conclusion. They argued that the plain text should control and that Breyer’s pragmatism was bad. However, the authors did write a long footnote reserving some residual uncertainty, pending further research.
Now, Frederick and Newsom have written a new paper that takes a revised position in “the Great Snail Debate.” Based on a new theory of “contextual textualism,” the authors believe the snails should ride for free after all. So much for the plain text that the authors had studied just a year earlier.
Moreover, Frederick and Newsom have reversed course for reasons that resemble the ones that Breyer originally laid out. As the authors themselves put it: “perhaps most surprisingly of all, it just might turn out that the very considerations Justice Breyer viewed as bases for departing from the regulation’s text—purposes, consequences, etc.—are important constituents of a properly contextual understanding of the rule’s language.”
What is left, then, of textualism? Frederick and Newsom contend that their approach is different from Breyer’s because they remain ultimately trained on the statutory text and, more specifically, on how an ordinary person would understand it. But does that theoretical difference really matter, if they remain prepared to deviate from textual meaning in the face of non-textual factors? Indeed, in the face of much the same non-textual factors as Breyer?
At one juncture, the authors use Church of the Holy Trinity v. United States—a paradigmatically non-textualist ruling—as their foil. Their discussion trades on a supposed concession by the Court: “The Supreme Court all but admitted that the law would have been ordinarily understood to criminalize the church’s actions.” However, the Court did no such thing.
Yes, Holy Trinity did distinguish between the “letter” and the “spirit” of the law, consistent with centuries if not millennia of interpretive tradition. But in candidly acknowledging that the letter of the law cut against its result, the Court had not “effectively conceded” how the law would be “ordinarily understood.”
Instead, the Court was (roughly) distinguishing between literal meaning and a kind of non-literal meaning—which is something that Frederick and Newsom themselves do throughout their paper. The Holy Trinity majority even invoked the “common sense of man” — prefiguring Frederick and Newsom’s interest in “all manner of commonsense considerations.” (The current Court is wont to do the same.) Once the Court’s supposed concession is set aside, it is hard to see why Holy Trinity’s method is so different from “contextual textualism.”
To be clear, non-textualist approaches are not all the same, and I suspect that Frederick and Newsom would often reach different results from Breyer (or the Holy Trinity Court). Yet the main reasons for that divergence would not pertain to the dividing line between textualism and non-textualism.
Stepping back, it is remarkable that Justice Breyer is so in synch with contemporary conservative legal thought. His snail example closely resembles the fact pattern that opens Sam Bray’s brilliant discussion of the mischief rule. (Both Breyer and Bray found examples involving not just animals, but also trains!) Meanwhile, originalists are embracing Breyeresque purposivism, while Breyer’s enthusiasm for balancing also finds new supporters among conservative scholars. And then, of course, there’s the major questions doctrine….
The legal realignment continues.