Justice Ketanji Brown Jackson, in her ongoing third term, has taken a decisive stance on statutory interpretation that may be reigniting a long-dormant debate within the U.S. Supreme Court. Her approach calls into question the dominance of textualism—a methodology championed by Justice Antonin Scalia, which prioritizes statutory language and eschews legislative history.
This term has been particularly notable for Justice Jackson’s series of separate opinions that highlight her disagreement with the majority’s reluctance to consider legislative history in statutory cases. Legislative history—a longstanding resource that includes materials like committee reports—is vital, Jackson argues, in determining Congress’s intent. This insistence marks a divergence from the prevailing textualist view, which typically shuns such sources in favor of the plain text of statutes.
Historically, the court experienced fierce debates over interpretive methodologies, with Justice Scalia’s textualism ultimately prevailing by the start of the Obama era. Justices like Elena Kagan and Sonia Sotomayor had seemingly accepted this approach, with Kagan famously declaring in 2015 that “we are all textualists now.” However, Justice Jackson’s recent opinions suggest a potential shift or at least a serious examination of textualism’s boundaries.
Jackson’s dissent in cases like FS Credit Opportunities v. Saba Capital emphasizes her belief that the court should incorporate legislative history to properly represent Congress’s intention. Her stance has not gone unnoticed, prompting comments from Justice Kagan and highlighting the emerging fault lines within the court regarding statutory interpretation.
The timing of Justice Jackson’s advocacy dovetails with other debates within textualist circles. Disputes around the necessity of ambiguity before applying policy presumptions, such as the major questions rule, indicate a lack of consensus among the justices. Questions of whether statutory interpretation should consider how Congress uses words versus how an “ordinary person” might understand them further complicate this methodological landscape.
As the court deliberates on these issues, the implications for legal interpretation are significant. Whether Justice Jackson’s views will gain traction in subsequent terms remains to be seen, but her contributions have certainly reinvigorated a conversation some considered settled. Legal professionals will be closely watching these developments as they could impact statutory interpretation approaches in future cases.