Clint Bolick: The Case For Legal Textualism

Having spent the past two years as a justice on the Arizona Supreme Court after 33 as a litigator, I’ve gained unexpected insights into judicial decision-making. Most cases involve judges rolling up their sleeves and combining their talent and expertise to reach the right outcome. But cases involving constitutional or statutory issues demand something more: a philosophy of legal interpretation. And what that philosophy is matters a great deal.

All judges have a philosophy of legal interpretation, even if they don’t think much about it. For many, particularly at the trial court level, it is often a matter of simply trying to get it right; that is, reading the law and higher court precedents and trying to make sense of them. Others place a high priority on their notions of fairness, justice, or efficiency. Even going along to get along is a type of judicial philosophy, though not exactly what most of us might expect from our judges.