Justice Neil Gorsuch’s approach to textualism, which this Note will call “muscular textualism,” is unique. Most notably exemplified in Bostock v. Clayton County, muscular textualism is marked by its rigorous adherence to what Justice Gorsuch perceives to be the “plain language” of the text. Because Justice Gorsuch’s opinions exemplify muscular textualism in a structured and consistent manner, his appointment to the Supreme Court provides the forum from which he can influence the decision-making process of other members of the judiciary when they seek guidance from Supreme Court precedent. Accordingly, it is important for both advocates and judges to understand the muscular textualist analysis and its often rights-restrictive results.
Muscular textualism departs from new textualism, the interpretive approach Justice Scalia promoted, in several respects. This Note focuses on two main differences between muscular textualism and new textualism: muscular textualism’s enhanced literalness, which causes the interpreter to adopt the most basic, narrow, and superficial interpretation of the text rather than exploring the nuances of the phrase at issue, and muscular textualism’s constrained view of what context interpreters may consider to discover the proper meaning of the text.
Part III of this Note applies the framework developed in Part II to two interpretive questions that have created a circuit split. First, it examines whether Section 2 of the Voting Rights Act prohibits restrictive voter ID laws. It then turns to Title III of the Americans with Disabilities Act and asks whether plasma centers are subject to compliance with Title III. Finally, this Note concludes by pointing to the potential impact of muscular textualism beyond the confines of statutory interpretation.
Recommended CitationElena Schiefele, When Statutory Interpretation Becomes Precedent: Why Individual Rights Advocates Shouldn’t Be So Quick to Praise Bostock, 78 Wash. & Lee L. Rev. 1105 (2022).
Available at: https://scholarlycommons.law.wlu.edu/wlulr/vol78/iss3/8