Major Questions, Common Sense?

Authors

Kevin Tobia, Georgetown University Law CenterFollow
Daniel E. Walters, Texas A&M University School of LawFollow
Brian Slocum, Florida State University College of LawFollow

Document Type

Article

Publication Date

9-2024

Journal Title

Southern California Law Review

ISSN

0038-3910

Abstract

The Major Questions Doctrine (“MQD”) is the newest textualist interpretive canon, and it has driven consequential Supreme Court decisions concerning vaccine mandates, environmental regulation, and student loan relief. But the new MQD is a canon in search of legitimization. Critics allege that the MQD displaces the Court’s conventional textual analysis with judicial policymaking. Textualists have now responded that the MQD is a linguistic canon, consistent with textualism. Justice Barrett recently argued in Biden v. Nebraska that the MQD is grounded in ordinary people’s understanding of language and law, and scholarship contends that the MQD reflects ordinary people’s understanding of textual clarity in “high stakes” situations. Both linguistic arguments rely heavily on “common sense” examples from philosophy and everyday situations.

This Article tests whether these examples really are common sense to ordinary Americans. We present the first empirical studies of the central examples offered by advocates of the MQD, and the results undermine the argument that the MQD is a linguistic canon. Even worse for proponents of the MQD, we show that the interpretive arguments used to legitimize the MQD as a linguistic canon threaten both textualism and the Supreme Court’s growing anti-administrative project.

First Page

1153

Last Page

1231

Num Pages

79

Volume Number

97

Issue Number

5

Publisher

University of Southern California Gould School of Law

Recommended Citation

Kevin Tobia, Daniel E. Walters & Brian Slocum, Major Questions, Common Sense?, 97 S. Cal. L. Rev. 1153 (2024).
Available at: https://scholarship.law.tamu.edu/facscholar/2120

File Type

PDF