Tara Leigh Grove (University of Texas School of Law) has posted The Power To Impose Method on SSRN. Here is the abstract:
Scholars have long debated methodological stare decisis: whether the Supreme Court should announce a single method, such as textualism or originalism, for interpreting all statutes and constitutional provisions. But, surprisingly, the debate has overlooked a crucial question: Does the Supreme Court have the power to impose an interpretive method? This Article argues that the Court has some, but only limited, constitutional authority to establish methodological precedents. The Court may craft instructions for interpreting distinct areas of federal law that bind itself and the lower federal and state courts. As the Article shows, the Court has often exercised this power. But the Court lacks the authority to declare in any Article III case or controversy that textualism (or purposivism) or originalism (or living constitutionalism) shall apply across the board. The Constitution thus limits the Court’s power to do what proponents of methodological stare decisis would like it to do: end the interpretation wars. The Article further argues that there are reasons to celebrate this state of affairs. The limits on the Court’s power enable continued debate and contestation over interpretive method. This debate is valuable because it both encourages refinements in existing methods and pushes advocates of a method to defend it on normative grounds. A broad interpretive method should win the day by persuasion, not by fiat.
Deep, important, and illuminating. Highly recommended. Download it while it’s hot!