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When should states have standing? In recent years, there has been an explosion in literature on that question. (1) Yet, even today, there seem to be as many questions as [...]

Scholars have long assumed that textualism is at odds with statutory precedent. Thus, when the Court in Bostock v. Clayton County relied on precedent in determining that Title VII protects gay. lesbian, and transgender individuals, many critics responded that the opinion was not true textualism. This Article challenges this longstanding assumption about textualism and precedent. By offering a novel typology of statutory precedent, the Article demonstrates that textualism is quite compatible with important uses of precedent. Prominent textualists have turned to what this Article calls the, first category of statutory precedent-reliance on Supreme Court cases to define the meaning of terms and phrases-in determining the plain meaning of laws. The Article further argues that this use of precedent is defensible on textualist principles. The Article then identifies a second and a third category of precedent-past statutory holdings and implementation tests, as well as efforts to preserve consistency in an area of law-that become relevant for textualists when they conclude that there is no plain meaning. This Article not only complicates assumptions about the relationship between textualism and statutory precedent but also has important implications for our understanding of the interpretive enterprise. First, textualists' reliance on statutory precedent to define the meaning of statutory terms and phrases indicates, contrary to the assumption Of many scholars, that textualists do not simply seek out the meaning that lay people would ascribe to certain words. Second, and relatedly, this analysis also upends assumptions that plain meaning analysis is primarily a linguistic and empirical inquiry. For many textualists, the effort to identifr the meaning of a federal statute is a legal and normative, not simply a linguistic, exercise. [ABSTRACT FROM AUTHOR]

INTRODUCTION 467 I. PROTECTING JUDICIAL TENURE 473 A. The Uncertain Teachings of Text and History 475 B. The Precedent of 1802 477 C. Congressional Power from the 1802 Repeal to [...], The federal judiciary today takes certain things for granted. Political actors will not attempt to remove Article III judges outside the impeachment process; they will not obstruct federal court orders; and they will not tinker with the Supreme Court's size in order to pack it with like-minded Justices. And yet a closer look reveals that these "selfevident truths" of judicial independence are neither self-evident nor necessary implications of our constitutional text, structure, and history. This Article demonstrates that many government officials once viewed these court-curbing measures as not only constitutionally permissible but also desirable (and politically viable) methods of "checking" the judiciary. The Article tells the story of how political actors came to treat each measure as "out of bounds" and thus built what the Article calls "conventions of judicial independence." But implicit in this story is a cautionary tale about the fragility of judicial independence. Indeed, this account underscores the extent to which judicial independence is politically constructed and historically contingent. Particularly at a time when government officials seem willing to depart from other longstanding norms, federal judges should take none of their current protections for granted.

INTRODUCTION I. A NEW JUDICIAL STRUCTURE II. CHANGES IN SUPREME COURT DECISIONMAKING III. IMPLICATIONS FOR CHALLENGES TO THE TIERS OF SCRUTINY CONCLUSION INTRODUCTION The standards of scrutiny governing judicial application [...]

ABSTRACT In many separation of powers debates, scholars excavate the practices and constitutional interpretations of Congress and the executive branch in order to discern the scope of various constitutional provisions. [...]

This Article challenges widespread assumptions about the history of textualism. Jurists and scholars have sought for decades to distinguish "modern textualism" from the so-called "plain meaning school" of the late nineteenth and early twentieth centuries--an approach that both textualists and non-textualists alike have long viewed as improperly "literal" and "wooden." This Article shows that this conventional historical account is incorrect. Based on a study of statutory cases from 1789 to 1945 that use the term "plain meaning" or similar terms, this Article reveals that, under the actual plain meaning approach, the Supreme Court did not ignore context but looked to surrounding text and structure to determine if an operative text was clear. The Article also offers an intellectual history, showing how in the early twentieth century, legal realists and legal process theorists created the myth of a "literal" and "wooden" "plain meaning school." More surprisingly, modern textualists later accepted this account--a decision that, this Article suggests, had an important impact on the development of textualism. To distinguish their brand from (what they saw as) the "literal" old plain meaning school, modern textualists defined "textualism" so capaciously as to create the conditions for divisions within textualism that we see today. This Article not only clears up a historical misunderstanding but also has two broader lessons. First, the account here offers a cautionary tale about reliance on "conventional wisdom." Second, the analysis suggests that theorists should set aside debates over "literalism" in statutory interpretation. The question is not--and has never been--whether interpreters should look to context but rather which context they should consider. [ABSTRACT FROM AUTHOR]

The United States Constitution was, in many respects, designed to be "a machine that would go of itself." (1) The Constitution would be made "politically self-enforcing by aligning the political [...]

The statutory interpretation literature has taken an empirical turn. One recent line of research surveys the public to test whether textualist opinions reached the "right answer" in specific cases-that is, whether textualist judges correctly identified the "ordinary meaning" of federal statutes. This Foreword uses this literature as a jumping off point to explore the concept of "ordinary meaning." The Foreword challenges two central assumptions underlying this empirical scholarship: first, that "ordinary meaning" should be viewed primarily as an empirical concept, and, second, that textualists themselves view "ordinary meaning" in empirical terms. As the Foreword shows, "ordinary meaning" can be understood as a legal concept, not simply as an empirical fact. Moreover, the Foreword demonstrates that many prominent textualists have long treated "ordinary meaning" as a legal concept-one that must be elucidated through the understanding of a hypothetical reasonable reader (although, as the Foreword discusses, textualists debate how well-informed such a reasonable reader should be). This analysis complicates recent efforts to test empirically whether textualists have reached the "right answer" in specific cases. For many textualists, like many other interpretive theorists, statutory analysis is primarily a normative, not an empirical, enterprise. [ABSTRACT FROM AUTHOR]

Scholars have long worried about the legitimacy of the Supreme Court. But commentators have largely overlooked the inferior federal judiciary--and the potential tradeoffs between Supreme Court and lower court legitimacy. This Essay aims to call attention to those tradeoffs. When the Justices are asked to change the law in high-profile areas--such as abortion, affirmative action, or gun rights--they face a conundrum: To protect the legitimacy of the Court, the Justices may be reluctant to issue the broad precedents that will most effectively clarify the law--and thereby guide the lower courts. The Justices may instead opt for narrow doctrines or deny review altogether. But such an approach puts tremendous pressure on the lower courts, which must take the lead on the content of federal law in these high-profile areas. Presidents, senators, and interest groups then zero in on the composition of the lower courts--in ways that threaten the long-term legitimacy of the inferior federal judiciary. Drawing on political science and history, this Essay explores these legitimacy tradeoffs within our federal judicial hierarchy. To the extent that our legal system aims to protect the legitimacy of the judiciary, we should consider not simply the Supreme Court but the entire federal bench. [ABSTRACT FROM AUTHOR]

An introduction is presented in which editor discusses various articles within the issue on topics including should states have at least "equal" access to federal court, Environmental Protection Agency's failure to regulate greenhouse gas emissions and challenge federal executive action.

The article examines states in the U.S. suing the federal government. Particular focus is given to instances of states vs. the United States, including those involving Massachusetts, Texas and Oregon. Additional topics discussed include the Federalism scholar Ernest Young, constitutional principle and the Supreme Court's original jurisdiction.

This Article challenges the conventional narrative about the political question doctrine. Scholars commonly assert that the doctrine, which instructs that certain constitutional questions are "committed" to Congress or to the executive branch, has been part of our constitutional system since the early nineteenth century. Furthermore, scholars argue that the doctrine is at odds with the current Supreme Court's view of itself as the "supreme expositor" of all constitutional questions. This Article calls into question both claims. The Article demonstrates, first, that the current political question doctrine does not have the historical pedigree that scholars attribute to it. In the nineteenth century, "political questions" were not constitutional questions but instead were factual determinations made by the political branches that courts treated as conclusive in the course of deciding cases. Second, when the current doctrine was finally created in the mid-twentieth century, the Supreme Court used it to entrench, rather than to undermine, the Court's emerging supremacy over constitutional law. Under the current doctrine, the Court asserts for itself the power to decide which institution decides any constitutional question. With control over that first-order question, the Court can conclude not only that an issue is textually committed to a political branch but also that an issue is committed to the Court itself. This analysis turns on its head the assumption of scholars that the current doctrine is at odds with judicial supremacy. The modern political question doctrine is a species of--not a limitation on--judicial supremacy. [ABSTRACT FROM AUTHOR]

Scholars and jurists have long assumed that, when the executive branch declines to defend a federal statute, Congress may intervene in federal court to defend the law. When invalidating the Defense of Marriage Act, for example, no Supreme Court Justice challenged the authority of the House of Representatives to defend federal laws in at least some circumstances. At the same time, in recent litigation over the Fast and Furious gun-running case, the Department of Justice asserted that the House could not go to court to enforce a subpoena against the executive. In this Article, we seek to challenge both claims. We argue that Congress has the constitutional power to enforce subpoenas but not defend federal statutes in court. Congressional defense of federal statutes violates two constitutional norms. First, except in certain specified situations (none of which are applicable here), the Constitution prohibits Congress or one of its components from having any role in the implementation of federal law. Second, unilateral defense by the House or the Senate violates the constitutional norm of bicameralism. The Constitution does not authorize either chamber to speak on behalf of Congress, much less the United States, in defense of federal law. By contrast, the Constitution gives each chamber considerable power to investigate wrongdoing by the executive and to conduct litigation growing out of such investigations--by, for example, enforcing subpoenas. We believe that this limited congressional power to appear in court makes eminent sense. The House and Senate counsel, as currently constituted, are poorly suited to defend their joint work product in court but are well situated to represent their respective institutions in other proceedings against the executive. Furthermore, this investigative power gives each chamber a powerful (and often overlooked) constitutional tool to do battle with the executive. [ABSTRACT FROM AUTHOR]