The New Textualism William Eskridge University of California Los Angeles Law Review 1990 In the late 1980s, a new approach to statutory interpretation emerged in the U.S. Supreme Court, championed by Justice Antonin Scalia. Professor William Eskridge wrote a landmark law review article where he dubbed this approach "The New Textualism." Eskridge claimed that New Textualism challenged decades of established practice in how courts interpret laws passed by Congress. For much of the 20th century, courts followed what Eskridge called the "traditional approach" to statutory interpretation. This method aimed to determine the intent of Congress in passing a law. To do this, judges would examine not just the text of a statute, but also its legislative history - things like committee reports, floor debates, and rejected proposals. The New Textualism, however, argued that judges should focus almost exclusively on the text of the statute itself. "The new textualism posits that once the Court has ascertained a statute's plain meaning, consideration of legislative history becomes irrelevant. Legislative history should not even be consulted to confirm the apparent meaning of a statutory text." There are several key arguments in favor of this approach: First, the New Textualists argue that the concept of a single "legislative intent" is often incoherent. Second, they contend that looking at legislative history gives judges too much discretion to cherry-pick evidence supporting their preferred interpretation. Third, the new textualists argue that their approach better respects the Constitution's requirements for passing laws. Only the text of a statute goes through the formal process of bicameral passage and presentment to the President. Committee reports and floor statements do not. However, critics of New Textualism raise several counterarguments: They note that words often lack a single "plain meaning" and that context is crucial for understanding. Legislative history, they argue, can provide important context. Critics also point out that Congress has long operated under the assumption that courts will consider legislative history. Ignoring it entirely could undermine decades of legislative practice. Finally, some argue that the new textualism doesn't actually constrain judges as much as it claims. Judges can still make subjective choices in how they interpret text and which canons of construction they apply. Professor Eskridge was already attuned to the fact that his approach could be very influential in Supreme Court legisprudence, even if it was controversial. "Justice Scalia's new textualism is a radical, as opposed to marginal, critique. It is a bold rethinking of the Court's role. Partly because of its analytical boldness, and partly because Justice Scalia is an intellectually aggressive member of the Court, the critique has already changed the Court's practice in statutory interpretation cases." While skeptical of New Textualism, Eskridge acknowledges its significant contributions. It refocuses attention on textual analysis, revives structural interpretation techniques, and offers a fresh perspective on how statutes evolve over time. The debate over textualism touches on fundamental questions about the roles of Congress and the courts, the nature of language and meaning, and how to balance democratic accountability with the need for stable, predictable law. Judges and scholars, including Professor Eskridge, continue to refine and debate the legacy of Justice Scalia and the uses and limits of textualism.