Major Problems with Major Questions

Source: Law & Liberty
by Chad Squitieri

“This July in West Virginia v. EPA, the Supreme Court formally recognized the ‘major questions doctrine.’ That doctrine, which can be traced to a 1986 law review article published by then-Judge Stephen Breyer, calls on courts to consider a legal question’s ‘political importance’ when interpreting statutes. The major questions doctrine is a product of legal pragmatism — a theory of statutory interpretation advanced by Justice Breyer which often elevates statutory purpose and consequences over text. The doctrine is inconsistent with textualism — an interpretive theory that emphasizes statutory text, structure, and history to understand a statute as the public originally understood it. The takeaway is clear: textualists should reject Justice Breyer’s major questions doctrine.” (09/06/22)