Heresies, Heretics, and Hermeneutics: The Battle of Textualism Against Pragmatism--and Itself--on the Robert Court

Authors

Jeffrey A. Van Detta, John Marshall Law School

Abstract

This Article examines the deepening jurisprudential conflict on the Roberts Court over statutory interpretation, framing the contest between textualism and pragmatism as analogous to theological disputes over orthodoxy and heresy. Drawing on the interpretive writings of Justices Antonin Scalia and Stephen Breyer, as well as the scholarly work of William Eskridge, the Article argues that contemporary textualism—particularly in its more rigid forms—risks distorting statutory meaning when divorced from broader contextual and purposive analysis. Through an eclectic examination of three statutory battlegrounds—the Foreign Sovereign Immunities Act, Reconstruction-era civil rights legislation and its modern successors, and the Alien Tort Statute—the Article demonstrates how textualism has, at times, fractured internally and produced inconsistent or strained results. The Author contends that a hermeneutically informed, dynamic approach to statutory interpretation better preserves judicial legitimacy and fidelity to law. While acknowledging textualism’s methodological contributions, the Article concludes that interpretive orthodoxy, when elevated above practical reasoning and contextual understanding, threatens both doctrinal coherence and the institutional authority of the Supreme Court.

Recommended Citation

Van Detta, Jeffrey A. (2024) "Heresies, Heretics, and Hermeneutics: The Battle of Textualism Against Pragmatism--and Itself--on the Robert Court," Belmont Law Review: Vol. 12: Iss. 1, Article 1.
Available at: https://repository.belmont.edu/lawreview/vol12/iss1/1