“We are all textualists now,” declared Justice Elena Kagan in a November 2015 lecture in honor of Justice Antonin Scalia, who would unexpectedly die just three months later. Was she serious or just speaking well of a colleague?

I do not have the answer, but I have some thoughts based on more than 30 years of arguing statutory-interpretation cases and two briefs I have worked on in cases the U.S. Supreme Court will hear this fall. The court's answer may shape statutory interpretation for decades to come. 

When Scalia joined the high court, textualism was not dominant. Attention to perceived legislative purpose, gleaned from any source including legislative history or a justice's sense of what was right, generally drove statutory interpretation.

Scalia changed that. The force of his arguments about textualism led his colleagues to think harder about the legitimate role of courts in our constitutional structure. The Constitution requires that the text of a bill pass both houses of Congress and be presented to the president for veto or signature. What is enacted is not legislative history and certainly not the intent of any particular legislator or the president. This was all as familiar as the “Schoolhouse Rock” song “I'm Just a Bill,” but some implications had not been thought through before Scalia's arrival.

One implication is that a court principally if not exclusively should ascertain from the words and structure of a statute what a provision means. Structure, not just words, matters. Scalia once wrote for a unanimous court that “statutory construction … is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme.” Criticism of textualism as a robotic one-word-at-a-time dictionary exercise is misplaced.

The recent decision in Food Marketing Institute v. Argus Leader Media illustrates the textualist-nontextualist divide. The majority opinion, written by avowedly textualist Justice Neil Gorsuch for six justices, minced no words in rejecting an interpretation of a Freedom of Information Act exemption that required “substantial competitive harm,” words not found in the statute. That requirement had been applied in lower courts since 1974. Yet, Gorsuch wrote, “we cannot approve such a casual disregard of the rules of statutory interpretation, [including] the ordinary meaning and structure of the law itself.” Justice Stephen Breyer's dissent, for himself and two other justices, read a “harm” requirement into the statute because interpreting the word “confidential” to impose such a requirement would be “more faithful to FOIA's purpose and how we have interpreted the act in the past.”

Scalia was proudly conservative. However, use of “conservative” as a reductionist label to describe him can create the impression that political views motivated all his decisions. Textualism is thus seen as an inherently conservative doctrine. But it need not be.

Limiting the sources from which one gleans the meaning of a law has no inherent political bias. It just moves the task in the direction (proponents argue) of accuracy and constitutional order.

“Ah,” some might say, “that might be true if the approach were followed consistently, with intellectual honesty and rigor, but that's not what has happened!” And that is why I raise the question whether textualism is at a crossroads.

In Bostock v. Clayton County, Georgia and related cases, there is a serious argument that textualism commands what some would consider a politically liberal result, namely that existing statutory law forbids discrimination based on sexual orientation and transgender status. My amicus brief for numerous current and former Republicans makes that argument, as do the parties' briefs and an amicus brief filed by Joshua Matz and Laurence Tribe for a bipartisan group of former U.S. solicitors general.

Next term, nine justices will decide whether our argument is correct. But it is expressly textualist. It will be fascinating to see if textualist arguments are made in response, especially by the current solicitor general, who plans to file in support of the defendants.

One opposing argument is that Congress did not “intend” to protect gay or transgender workers. But that is not a textualist response.  It is the opposite of what a textualist would say. President Lyndon Johnson and those who voted for final passage agreed on the words of the 1964 act, not anything in the Congressional Record or gleaned from the nation's historical zeitgeist.

Another argument is that reading “because of sex” to ban discrimination based on LGBT status will call into question hair-length regulations, dress codes and rules on who can use which bathrooms. I leave aside the strength or weakness of those arguments and whether the feared consequences are good or bad. The arguments are consequentialist, not textualist. If “we are all textualists now,” then those arguments should receive respectful consideration from the justices (insofar as they shed light on text and structure) but should not by themselves drive the high court's decision. 

In County of Maui v. Hawaii Wildlife Fund, my colleagues and I argue that textualism points to a politically liberal, “anti-business” result, namely that a permit is required for any discharge of pollutants, direct or indirect, into navigable waters from a “point source” as the statute defines that phrase. Our amicus brief for Trout Unlimited makes the argument, as do other briefs filed by the parties and other amici.

Nine justices will decide whether our argument is right. But it is expressly textualist. 

In a plurality opinion in Rapanos v. United States, Scalia noted that the provision at issue contains no requirement of directness. The brief of the alleged polluter and that of the solicitor general attempt to undermine Scalia's observation, dismissing it as dictum or as having no connection to pollutants passing through groundwater. It is interesting to see the briefs dismiss Scalia's reasoning in seeking a “conservative” result.

If textualism is a politically neutral doctrine, then the avowed textualists on the high court will have to choose among the competing textualist arguments based on their intrinsic strengths and weaknesses, not based on purposivism and consequentialism. I will watch with great interest.

Roy T. Englert Jr. is a partner with Robbins, Russell, Englert, Orseck, Untereiner & Sauber. He was an assistant to the solicitor general from 1986 to 1989. He has argued 21 cases in the U.S. Supreme Court.