John F. Manning, The New Purposivism, 2011 Sup. Ct. Rev. 113 (2012).
Abstract: Throughout most of the twentieth century, the Court subscribed to the traditional purposivist framework of Holy Trinity Church v United States, which held that Congress enacts statutes to achieve certain purposes, and that judges may reshape statutory language to fulfill those purposes. On that view, the “letter” of the law had to yield to its “spirit” or purpose. The Court, however, has not cited Holy Trinity positively for more than two decades. Rather than sacrificing letter for spirit, the Court has become increasingly inclined to adhere strictly to a clear statutory text, even when doing so produces results that fit poorly with the apparent purposes that inspired the enactment. Conventional wisdom ascribes this development to the rise of textualism. And the Court's leading textualists — Justices Scalia and Thomas — took the lead in pressing the claim that an enacted text must take priority over its unenacted purposes. Of interest here, however, the Court’s nontextualist Justices have also increasingly subscribed to the idea that judges must enforce text over purpose. This article examines why Justices who came out of the purposivist tradition might have gone along with rejecting Holy Trinity. In particular, the paper suggests that the Court's current approach may reflect a new understanding of what purposive interpretation properly entails. The new approach may assimilate a growing sense that the law's “purpose,” properly understood, embodies not merely a statute's substantive ends (its “ulterior purposes”), but also Congress's specific choices about the means to carry those ends into effect (its “implemental purposes”). On this account, purposive interpretation takes seriously the implemental signals that Congress sends through the level of generality reflected in its choice of words. A precise and specific command (“no dogs”) signals an implemental purpose to leave relatively little discretion to the interpreter. An open-ended and general command (“no disruptive animals”) signals the opposite. This article suggests that this “new purposivism” — one that accounts for implemental as well as ulterior purposes — may explain recent shifts in statutory methodology and the broad acceptance of those shifts by almost all of the Justices.