Are we all pragmatists now? Eleven years after Justice Kagan’s famous quip, there may be a “realignment,” or, perhaps, an “alignment” between textualists and non-textualists. At least, that’s what Richard Re recently argued. In a characteristically insightful blog, Re takes note of a recent article by Alana Frederick and Judge Kevin Newsom—two card-carrying textualists. They appear to embrace an approach (“contextual textualism”) that, in practice, looks a lot like the “pragmatism” championed by Justice Breyer—their chief interlocutor. But Justice Breyer’s interpretive approach is consciously non-textualist. Despite that, Frederick and Newsom argue that “it just might turn out that the very considerations Justice Breyer viewed as bases for departing from the regulation’s text—purposes, consequences, etc.—are important constituents of a properly contextual understanding of the rule’s language.”

Simply put, Frederick and Newsom (two textualists) use the same devices (purpose, consequences, etc.) and reach the same conclusions (at least, in their principal “snail hypo”) as Justice Breyer (a non-textualist). Re wonders, then: “What is left, then, of textualism?” To be sure, Re notes that “Frederick and Newsom contend that their approach is different from Breyer’s because they remain ultimately trained on the statutory text and, more specifically, on how an ordinary person would understand it.” But, he continues, “does that theoretical difference really matter, if they remain prepared to deviate from textual meaning in the face of non-textual factors? Indeed, in the face of much the same non-textual factors as Breyer?” Re finds it “remarkable that Justice Breyer is so in synch with contemporary conservative legal thought.”

Re’s interjection is a useful one. And I think his observation is spot on. But I’m unsure that these similarities between “contextual textualism” and Justice Breyer’s “pragmatism” represent a “legal realignment” (or, more precisely, a legal alignment). To be sure, it’s correct that “contextual textualism” and “pragmatism” rely on similar devices and (sometimes) reach similar results. But just because these two different schools of interpretation are using what look like similar tools doesn’t mean they are legally aligned. That’s because the two camps embrace a different “standard of rightness”; that is, they employ a different standard to distinguish between legally correct interpretive answers and incorrect ones.

Professor Stephen Sachs made a similar point in the context of originalism and theories of constitutional interpretation. Sachs argues that originalism “is better understood as a standard, not a decision procedure. It offers an account of what makes right constitutional answers right. What it doesn’t offer, and shouldn’t be blamed for failing to offer, is a step-by-step procedure for finding them.” Originalism, in other words, “picks out a destination, not a route.”

We should think about statutory interpretation the same way. When Frederick and Newsom argue that we should embrace “contextual textualism,” what they’re really saying is that we should embrace a particular standard of rightness. For them, a “correct” interpretation of the text is one that “identif[ies] and effectuates the ordinary understanding of those subject to the law.” (To put my own cards on the table, I’m skeptical that the legally relevant meaning of a statute is always its “ordinary meaning.”). Justice Breyer, however, seems to embrace a different “standard of rightness” than that of Newsom and Frederick. A correct interpretation of a statute is one that is consistent with the purposes “serve[d]” and “further[ed]” by the statute. At their core, these are, as Sachs might say, “substantive standards, rather than decision procedures.” We can use them to “evaluate [interpretive] propositions, not scholarly methods of discovering them.”

To be sure, it might be the case, as Re observes, that those who embrace different standards might end up using the same procedures. But that doesn’t tell us too much. Consider two interpreters: the first thinks that correct interpretations are those that align with how regular people use language, and the second (a descendant of Noah Webster) thinks that correct interpretations are those that align with his great-grandfather’s famous dictionary. When confronted with a statute, both interpreters would likely open up Merriam-Webster. And they might even reach the same interpretive conclusion. But though their procedures and conclusions aligned, their standard of rightness did not.

The difference in standards matters. Any result reached by the first interpreter is falsifiable. Whatever result he reaches can be judged against his accepted standard of rightness. And, if others could show that his decision procedure—opening up a dictionary—does a poor job of getting answers that meet his standard, then he’d be required to ditch that procedure for other kinds of evidence. But because the second interpreter embraces a different standard, his use of dictionaries can never be called into question. His use of that tool gets him results consistent with his standard of rightness every time.

Now imagine if the second interpreter’s standard was something like: Any interpretive result that aligns with his own conception of justice and fairness is a correct one. Maybe that interpreter would occasionally reach the same results that Frederick and Newsom do. And maybe they’d even enlist similar tools from time to time. But their “destinations” would be different. If the second interpreter invoked his own views on morality to reach a result, we might disagree with his standard of rightness. But we’d be hard-pressed to call into question the procedures he used. Indeed, those procedures would be consistent with his preferred standard.

This all goes to show that, when it comes to interpretation, we’re really fighting about standards—not procedures. Modern textualists are skeptical of legislative history, for example, because they think that piece of evidence does a bad job of uncovering “the plain meaning of the text.” That is, it does a bad job of getting results that satisfy modern textualism’s standard of rightness. If our standard for “correct” interpretations was something else—say, whatever meaning a House committee ascribed to the law—looking at legislative history would be sensible. It’d be consistent with the prevailing standard of rightness.

Simply put: We care about what makes an interpretive answer “correct.” Maybe correct interpretive answers are ones that align with how ordinary people “understand” written texts (Frederick and Newsom’s view). Or maybe correct answers are those that are consistent with the purposes served and furthered by the text (Justice Breyer’s view). Or maybe, as Professors William Baude and Sachs argue, the “correct” legal content of a statute is that which the “law of interpretation” calls for. These are all different standards of rightness. To be sure, all three groups may peek at purpose, context, or consequences when reading a text. In that sense, there’d be some “alignment” between them. But there would not be “legal alignment.” That’s because they’d still disagree about what makes an interpretive answer a legally correct one.

Elias Neibart graduated from Harvard Law School in May 2025. He now works as a law clerk in New York.