The Crucial Importance of Textualism

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National Review :

The Crucial Importance of Textualism

 

If judges decide cases based on their personal beliefs, there is no rule of law.

 

By Howard Slugh — March 30, 2016

The American people ought to consider the recent oral argument in Zubik v. Burwell, a case regarding religious exemptions from Obamacare’s abortifacient mandate, when considering what type of justice should fill Antonin Scalia’s seat on the Supreme Court. The questions asked by several justices during that argument offer compelling reasons why the American people should reject any nominee who is not dedicated to the textualist method of legal interpretation, and any presidential candidate who might make such a nomination.

 

President Obama recently summarized the non-textualist view when he indicated that a judge should usually “faithfully apply the law,” but in certain special cases can shape the law based on “his or her own perspective, ethics, and judgment.” That judicial philosophy is problematic because it strips the law of constitutional legitimacy and stability. Both of these deficiencies were on display during the Zubik oral argument.

 

During that argument, several Supreme Court justices who adhere to the president’s view indicated their willingness to replace the legislatively enacted balance between religious liberty and government power with a balance that conforms to their personal judgment. For example,