Michael Francus

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There is a shift afoot in textualism. The New Textualism of Justice Scalia is evolving in response to a new wave of criticism. That criticism presses on the tension between Justice Scalia’s commitment to faithful agency (effecting the legislature’s will) and his rejection of legislative history in the name of ordinary meaning (which ignores legislative will). And it has caused some textualists to shift away from faithful agency, even to the point of abandoning it as textualism’s grounding principle. But this shift has gone unnoticed. It has yet to be identified or described, let alone defended, even as academic and judicial textualists continue to drift away from New Textualism to a newer textualism. Digital Realty v. Somers brought this newer textualism to the fore in a pair of concurrences that dueled over legislative history. The duel reopened the debate long silenced during Justice Scalia’s tenure. And it suggested two shifts. First, Justice Alito joined the textualist rejection of legislative history, a shift in his jurisprudence. Second, and presumably the cause of the first, Justice Thomas returned to the argument that intent, and thus the legislative history in which it is found, is illegitimate in principle — not just impractical. That line of argument signals a rejection of faithful agency and a shift from New Textualism’s embrace of faithful agency to a textualism that instead grounds itself in democratic interpretation. This Essay teases out what Digital Realty portends. It identifies the shift toward a New New Textualism. And it describes that textualism’s latest development, which rejects faithful agency (and with it all intent and almost all legislative history), replacing it with democratic interpretation. Last, this Essay then sketches a defense of the position that this New New Textualism, in developed form, stakes out.