Textualism's defining moment

Textualism promises simplicity and objectivity: Focus on the text, the whole text, and nothing but the text. But the newest version of textualism is not so simple. Now that textualism is the Supreme Court's dominant interpretive theory, most interpretive disputes implicate textualism, and its inherent complexities have surfaced. This Article is the first to document the major categories of doctrinal and theoretical choices that regularly divide modern textualists and for which their theory currently provides no clear answers. Indeed, as practiced by the Justices, the newest textualism undermines the rule of law that is its theoretical foundation.As we demonstrate, there are at least twelve categories of analytical choices faced by textualists in the hard cases that dominate the Supreme Court's docket and academic discourse. At present, the new textualist Court is riven with internal divisions and sends less-than-clear messages to the lower courts. And the objective, text-based evidence the Justices claim to apply does not constrain the Court's results. This Article argues that textualists must better define their methodology and should jettison the most activist or idiosyncratic doctrines that have become prominent in Roberts Court legisprudence. The Article concludes with some best practices that would build on the Court's text-centric focus but render that focus better suited to the Court's proper role as a neutral partner to Congress in elaborating statutory schemes.