April 11, 2019 - A statutory interpretation scholar/expert said that despite the prevalence of textualist Supreme Court justices, purposivism is "alive and well" in the modern version of the Court during a presentation last week in the Hendricks Heritage Room at the University of Houston Law Center.
Anita S. Krishnakumar, the Mary C. Daly Professor of Law at the St. John's University School of Law, was the most recent speaker at the Spring 2019 Distinguished Speaker series. Her presentation was based on her paper, "Backdoor Purposivism" which will be published in the Duke Law Journal.
"While purposivist Justices in the modern era do pay attention to text and invoke textual canons in a way that their 1970s purposivist counterparts did not, modern purposivists have not abandoned the traditional purposive approach of identifying a statute’s policy objective and adopting the construction that best fits that objective," Krishnakumar said. "On the contrary, modern purposivists regularly invoke statutory purpose, intent, and legislative history—even if the Court as a whole does not.”
"Second, and perhaps more importantly, the Court’s textualist Justices quietly have been engaging in a form of purposive analysis that comes closer to traditional purposivism than scholars and jurists have recognized.”
Purposivism is a theory of statutory interpretation that takes into account the purpose or intent of a law. Krishnakumar's paper analyzed 499 statutory interpretation cases from 2006-2017 since John Roberts became Chief Justice. She advocated that both textualists and purpovisists should employ interpretive resources outside their preferred toolkit in order to check the accuracy of their initial statutory readings and to curb the influence of their inherent personal biases.
"Textualist Justices have been using pragmatic reasoning, as well as traditional textual canons such as noscitur a sociis and the whole act rule, to impute a specific intent or policy goal to Congress in many cases," Krishnakumar said. "This practice, which I call “backdoor purposivism,” goes beyond using text as the best evidence of statutory purpose and entails significant judicial guesswork and construction of legislative purpose and intent.
"In the end, there may be less distance between textualists and purposivists than the old debates suggest — but because textualists have embraced purpose and intent in unexpected ways, rather than because, or merely because, purposivists have become more text-focused."
The Spring 2019 Distinguished Speaker Series will conclude with Aziz Huq of the University of Chicago Law School on April 8 in the Hendricks Heritage Room.