Jotwell, the Journal of Things We Like (Lots) (edited by editor-in-chief Michael Froomkin and sponsored by the University of Miami School of Law), examined Does Textualism Constrain Supreme Court Justices?, a 2025 Fordham Law Legal Studies Research Paper (No. 5122933) co-written by Fordham Law Professor James Brudney.
Jotwell states that the paper, which analyzes justices’ use of textual canons and legislative history, “provides much-needed empirical testing of one of textualist interpretive philosophy’s key claims.”
Enter Professors Brudney and Baum, who marshal an impressive dataset of 660 statutory decisions involving labor and employment law statutes decided between 1969 and 2024 in order to measure empirically how well textualist interpretive tools constrain judicial decision making. The result is an article rich in both empirical and doctrinal analysis of liberal and conservative justices’ use of textual canons, legislative history, and legislative purpose to reach interpretive outcomes consistent (or inconsistent) with their ideological preferences. Because their dataset is so broad—covering 54 terms’ worth of cases—Brudney and Baum are able to document historical changes and draw historical comparisons that other scholars have only been able to gesture at anecdotally.
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In short, Does Textualism Constrain Supreme Court Justices? provides much-needed empirical testing of one of textualist interpretive philosophy’s key claims. It is, of course, just one article, and much more work needs to be done in this area, but Brudney and Baum provide an admirable and welcome first foray into tackling this important empirical question. Anyone interested in statutory interpretation should read this article with interest!