Abbe R. Gluck (Yale University – Law School) has posted “Ordinary Reader” Statutory Interpretation and Faithful Agency, forthcoming in the University of Chicago Law Review (2026), on SSRN. Here is the abstract:
What does it mean for courts to be “faithful agents of the people” in the context of statutory interpretation? Pronouncements coming out of the Supreme Court of late suggest that American statutory interpretation is undergoing a seismic shift in perspective and goal. Textualism for decades has been based on the concept of judges as “faithful agents” of the legislature, and textualist theory and doctrine are grounded in the concept of legislative supremacy. Textualism, however, has entered its second generation. The Court’s newest textualists have announced a change in perspective and mission. They say they reject the idea of focusing on Congress. Instead, they argue for a shift from an “insider” to an “outsider” perspective based on how “ordinary people” read statutes. Justice Barrett put it most dramatically when she argued for a “competing conception of faithful agency,” one in which courts interpreting statutes view themselves as “faithful agents of the people rather than of Congress.” But what does it mean for courts to interpret statutes as ordinary people would? One would think such courts might consult C-SPAN hearings, press conferences, newspaper summaries of statutes—the kinds of materials to which ordinary people interested in statutes might be exposed. But they do not. The problem for ordinary-meaning textualists is that ordinary people do not actually read federal statutes. Federal statutes are not written in narrative form; they are replete with cross-references and cannot be understood just from the words on the page. And public laws as enacted (say, the Civil Rights Act of 1964) are cut into pieces after enactment and scattered across disparate sections of the U.S. Code, and so do not appear in the statute books as continuous directives. Even putting aside these practical hurdles of the announced ordinary-reader approach, the fact of the matter is that the Court’s textualists remain avid users of the very Congress-focused tools that ordinary-reader judges advocate rejecting. Indeed, the second-generation textualists on the Court, including Justice Barrett, may be even more focused on Congress than their predecessors, even though they do not openly admit it. This Essay presents the results of a review of all of the statutory interpretation opinions by the Courts’ textualists over the past nine-and-a-half Terms. It reveals that the congressional perspective remains ubiquitous in the Court’s interpretive work, even as the Court disavows it. The Court’s textualists frequently rely on Congress’s rationality when drawing interpretive conclusions; look to congressional intent and legislative history; and invoke “insider tools,” including Congress’s drafting conventions, the common law, and Congress’s purportedly intentional choice of word variation across the U.S. Code, when they interpret statutes. The findings are important because the question of the Court-Congress relationship is perhaps the most fundamental question in statutory interpretation. It is also, ultimately, a question of constitutional law—what does Article III require from courts vis-à-vis Congress’s work product? And what does Article III allow? Perhaps divorcing statutory meaning from Congress is not as simple as it looks—or perhaps it is not really the Court’s goal. Ultimately, the study resonates with a point hinted at in Justice Barrett’s own work, but never fully explored; namely, that textualism’s perspective remains incompletely theorized. An ordinary-reader approach, for example, is difficult to square with some of the Court’s favorite interpretive presumptions. Emerging debates among the Court’s textualists over the major questions are starting to surface that problem. Textualism has also traditionally grounded itself in a theory of separation of powers and judicial restraint, but, arguably, a Court that cares increasingly less about Congress’s intentions and conventions when interpreting statutes is a Court that draws more power to itself. Yet the newest textualists, even as they look away from Congress with one eye, are still looking back at it with another.
Highly recommended.
Gluck’s findings connect to debates about the role of pragmatics in statutory interpretation. The “ordinary reader” standard cannot be purely semantic — ordinary meaning is pragmatically enriched meaning — and pragmatic enrichment requires a theory of context and speaker. Textualist theory is still catching up with theoretical work on the nature of statutory interpretation. That work strongly suggests that one of the keys to recovering the actual communicative content of a statutory text is identifying the primary intended readership of the statute. In some cases, that reader may be the general public and ordinary meaning would be the right approach. But in other cases, the primary intended readership may be a regulatory agency and regulated industry that participated in the legislative process. In that case the shared context of statutory communication will be rich and include legislative history.
Here is how Gluck defines textualism: first-generation textualism “has been based on the concept of judges as ‘faithful agents’ of the legislature” with “textualist theory and doctrine grounded in the concept of legislative supremacy.” Second-generation textualists announce a shift “from an ‘insider’ to an ‘outsider’ perspective based on how ‘ordinary people’ read statutes” — courts as “faithful agents of the people rather than of Congress.” Gluck contends that neither generation has developed a coherent account of which pragmatic context governs statutory interpretation or why. Maybe not, but if we are looking for a theory, then judicial opinions might be a starting point, but surely not the stopping point. In fact, sophisticated textualists have a lot to say about pragmatics. For example, Pragmatics and Textualism is all about that question.
Lawrence Solum