Textualism as Ad Hocery
A Law of Unintended Consequences
Disclosure: The Author represents clients that are effected by the cases discussed in this post.
Dear Reader,
In my last missive to you, I explained how the potential horrors that may follow in the wake of the conversion therapy decision, Chiles v. Salazar, could be limited by Trump v. Barbara, the birthright citizenship case. While the Barbara Court could limit Chiles, it likely wont. Yet, the Court is also more open than ever to departing from extremely recent decisions on ad hoc bases.
Ad hocery is the Court’s practice of giving ad hoc decisions to resolve specific issues on a case-by-case basis symbolized by Mathews v. Eldridge’s cost/benefit balancing test. On the other hand, stare decisis doctrine is the Court’s practice of standing by past decisions today to ensure predictability, fairness, equality of rights, and the rule of law. Viewing the Court’s prudential rulings in general, its ad hocery was probably meant to fill gaps in the general common law rule that the Court follows precedent.
However, the Court apparently reversed this general framework by making ad hocery the rule and stare decisis the exception. This was done when the Court repeatedly extended a Mathews-styled Janus v. AFSCME balancing test as anti-precedent precedent. After overruling several precedents under Janus, the Court finally overruled Roe v. Wade in Dobbs v. Jackson Women’s Health Organization. Justice Kagan managed to get a narrowed version of her concept of statutory stare decisis on life support in Allen v. Milligan, which extended the idea that “stare decisis is a foundation stone of the rule of law” when the Court decides statutory text.
Despite the Court’s systemic embrace of ad hocery, the Court almost charted a new course in Ramos v. Louisiana, along the lines of Justice Scalia’s old rejection of “the bestiary of ad hoc tests and ad hoc exceptions that we apply nowadays.”[1] Unfortunately, Ramos was a blip. Though Scalia was never wholly serious in his critique of ad hocery, in Hamdi v. Rumsfeld Scalia marvelously rejected Mathews-styled ad hocery “where the Constitution and the common law already supply an answer.”
The reason Scalia was inconsistent about his dislike for ad hocery was because ad hocery is an expression of judicial power. Outwardly, Scalia criticized judge-made laws as a usurpation of legislative power, and his apparent dislike for ad hocery fits this wider criticism. However, Scalia also reveled in his own power more than the average jurist.
Thus, Scalia would likely have supported Justice Kagan’s meager attempt to preserve stare decisis as a way of preserving the Court’s interpretations of statutes as precedential. Theoretically, this would leave the Court greater leeway to modify its interpretations of the U.S. Constitution, because no other power in the government can, apparently, check the Court’s revisions of constitutional provisions. Basically, Scalia’s rejection of ad hocery as nominally reformed and extended by Kagan in recent case law, is a do-it-if-you-can-get-away-with-it jurisprudence.
But the common law, as Scalia argued, already provides a solution — even, and perhaps especially, where the Court cannot technically be checked by the other branches. The common law requires the Court to decide when and where the statutes are constitutional, and where they are not the Court must find the statutes void. This is not usurpation or legislation from the bench; this is the constitutional structure intended by the Founding Fathers as originally demonstrated in Marbury v. Madison.
Justice Scalia’s fainthearted “Originalism” and “Textualism” have started to replace the actual constitutional structure, symbolized by Marbury, that the Court is meant to expound in America. The Court has stopped applying constitutional avoidance doctrine, which requires the Court to adopt interpretations of statutes that are least likely to conflict with the constitution. Instead, the Court has begun reinterpreting the constitution so that the constitution fits the Court’s passing interpretations of statutory text.
The theory behind this inversion of judicial process according to Textualism is the feudalistic theory given in Seila Law LLC v. CFPB. In Seila Law, the Court decided that the separation of powers requires that the President “could ignore federal law and fire an agency head without cause,” because the President is the most democratic branch of the government. Thus, the Court implicitly decided that the scandal of Godden v. Hales that put the king above the law in England was resolved by the democratic system that elects the President into office in the United States.
The most obvious problem with Seila Law is that its resolution of Godden from the U.S. Constitution does not exist, because the U.S. Constitution candidly does not mandate or require the President to be democratically elected. Thus, the Court appeared to extend the feudal powers of a king, that scandalized even Great Britain in Godden, into American law through the Constitution by interpreting that the Constitution resolved this problem when it did not. The States gradually required the democratic election of our Presidents, therefore, the Court’s structural basis for deciding Seila Law was actually a happy accident if it did, in fact, resolve the problem of Godden in America at all.
The Supreme Court’s ability to expound illusory and even mystical readings of the U.S. Constitution facilitates its Textualist demagoguery in cases of statutory interpretation. For example, in the oral arguments in the recent case Noem v. Al Otro Lado, the Court quibbled about what “arriving at” or “arriving in” means in relation to U.S. asylum rights and treaty obligations. A majority of the Court assumed the tone of Justice Alito’s opinion in Jennings v. Rodriguez that emphasized Textualist reasons for mandating immigrant detentions of arriving aliens.
Looking to the text of the statute, in Jennings, Alito basically opined that “shall” means “shall” in the mandatory detention portion of the statute that referred to arriving aliens who have not yet received a credible fear interview. However, when the federal government reinterpreted the mandatory detention section of the statute to include presumably all undocumented immigrants to keep them detained potentially forever, immigration attorneys filed an unheard-of number of habeas corpus writs to vindicate the text of the statute as required by Jennings. Despite reports of widespread success, several orders of lower courts mandating release pursuant to the law have stalled out while higher courts decide whether the government can interpret potentially every undocumented immigrant as an arriving alien that “shall” be detained in the United States.[2]
In Zadvydas v. Davis, the Court avoided this statutory interpretation, because it found the prospect of potential indefinite or overly prolonged immigrant detention likely unconstitutional. As Jennings was able to dismantle Zadvydas sub silentio without explaining how the result was constitutional or not, it appears that Textualism’s nature as ad hocery cannot be tested until the Court is forced to decide a Textualist constitutional question as the Court faces in Barbara. The Court’s assertion of the shadow docket in Trump v. CASA, Inc. to freeze the benefits of potentially every American’s citizenship while the Court decides Barbara emphasizes Textualism’s ad hocery because yesterday’s Textualist reading does not matter today, and therefore today’s probably won’t matter tomorrow.
Thus, it does not matter what the Court’s Textualist interpretation becomes in Al Otro Lado, because the Court no longer sees its own precedent as final. The government will reinterpret the law however it wants to and it will win orders to stall immigrant release until the Court can decide, again, what the statute’s text says. The Court’s power to perpetually reinterpret law to accommodate radical shifts in the government’s interpretation of laws facilitates a potentially perpetual detention of immigrants despite long-settled precedent on the issue.
However, the Court’s revisiting of the Citizenship Clause’s words “subject to the jurisdiction thereof” in Barbara is particularly unsettling. Merely by litigating the issue, the President already vindicated his power to ignore what is a clear constitutional mandate backed by both Congress and the Court through the shadow docket in CASA. In other words, through litigating Barbara the President already managed to hold the basis of every American’s citizenship in perpetual suspense according to the Court’s ad hoc interpretations of constitutional text.
As clarified by Justice Thomas’s infamous Dobbs concurrence, this power can justify the degradation of potentially all rights previously protected by the Supreme Court in America. The way Thomas masterminded this, was by extending the so-called “slavery argument” from the Slaughter-House Cases by way of the Privileges or Immunities Clause. Doing this would potentially require the Court to overrule substantive rights decisions from Loving to Griswold to Obergefell, while breathing new life into Nineteenth Century abominations from Plessy to Cruikshank to Bradwell.
The Court in Barbara could avoid this by properly upholding United States v. Wong Kim Ark (the birthright citizenship case) as a rejection of the slavery argument, which it was. But the rub is that many appear to believe Wong Kim Ark interpreted the feudalism in Calvin’s Case, as though it were common law. In fact, the Plaintiff in Barbara claimed that Calvin’s Case was pure common law, and that it was extended fully in Wong Kim Ark as though Calvin’s Case was not corrupted by anti-American feudal law.[3]
The President deceptively pointed this error out in oral arguments only to contend that the Court should interpret Calvin’s Case as feudal-maxxing. That is, the President feels that all Americans, whether born in or out of the United States, should start out as enemy alien infidels rather than citizens. Nobody before the Court in Barbara contended for the proper rejection of the enemy alien infidel concept invented in Calvin’s Case according to the founding cases extended by Wong Kim Ark, and according to the First Amendment separation of church and state.
The potential for extreme irony is written on the walls, as the Barbara Court may upend the basis of Boyd v. Nebraska ex rel. Thayer in Wong Kim Ark’s departure from Dred Scott v. Sandford according to the dissents in Slaughter-House. In laymen-speak, the President’s apparent betrayal of Boyd in Barbara represents the destruction of white privileges so that all Americans will be treated as Black chattel slaves as though starting out as chattel was always America’s little hazing ritual when it was not. This travesty is the opposite of the intentions of the Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments, and is, again, feudal-maxxing according to the abomination recently explored by Holly Brewer and myself by reviewing Grantham’s Case, to treat all Americans as though we were originally monsters owned by English lords.
To be sure, Calvin’s Case contains a radical, feudalistic distinction between alien friends and enemies that the Founders of the United States boisterously rejected.[4] In the decisive words of inaugural Justice of the U.S. Supreme Court, framer of the U.S. Constitution, and signatory of the U.S. Declaration of Independence James Wilson: “In ancient times, every alien was considered as an enemy. The rule, I think, should be reversed.”[5] Then Justice Wilson and his compatriots on the bench consciously initiated and constitutionally defended this reversal in several cases, beginning with Respublica v. Chapman, that limited the fledgling States’ sovereign powers to make all inhabitants then living in the colonies U.S. citizens according to rights of emigration, election, and expatriation.[6]
The problem potentially caused by embracing the so-called common law in Calvin’s Case with absolutely no discussion about how the founders ingeniously rejected Lord Coke’s feudalistic distinction of enemy aliens could be catastrophic.[7] The enemy alien distinction, which the President appears to want to unilaterally apply to all inhabitants in America without consulting the several States, is based upon religious belief that now violates the First Amendment. It was theoretically cured by several state treason statutes that made all inhabitants on or around July 4, 1776 citizens of the United States.
The Court’s failure to address the First Amendment and the Constitution’s prohibition of religious tests in Barbara is why Barbara almost certainly will not limit Chiles. The Court and the plaintiff’s counselors that practice before it, appear oblivious to the links between Barbara and Chiles. Yet, the President will almost certainly find the links useful if he wanted to extend his onslaught against immigrants to vulnerable non-straight and non-cis-gendered groups.
In the arguments of Barbara, there was absolutely no discussion about the nation’s original treason statutes, the First Amendment, or the founding rejection of Calvin’s Case as feudal law. Essentially the plaintiff and the President argued the same thing in reverse. According to them either feudalism is common law or common law is feudalism, and both left the Court to radically reshape America according to a magical third option that the Court may now divine between these artificial extremes invented by the parties to justify laws made by judicial fiat.
This strategy of divining bright line rules between binaries invented by the court was apparently invented by Justice Oliver Wendell Holmes, Jr. In his article, Law in Science and Science in Law, he showed the legal profession how to create a new law in the penumbra between any persistent extreme in human society, using the night and day in Massachusetts as an example.[8] But the law he made was not in statute or common law, but invented on an ad hoc basis that has, today, spread throughout the judiciary and is now destroying the Court itself by upending stare decisis and any basis the public has to trust that the decisions of the Court today will have any effect on the orders of the Court tomorrow.
My article inspired by Lulu Miller’s wonderful book Why Fish Don’t Exist at West Virginia Law Review can be consulted for more information regarding this topic.
Yours Respectfully,
Joshua J. Schroeder, Esq.
[1] Comptroller of Treasury v. Wynne, 575 U.S. 542, 574 (2015) (Scalia, J., dissenting); see Joshua J. Schroeder, Rethinking Rights in a Disappearing Penumbra: How to Expand Upon Reproductive Rights in Court After Dobbs, 54 N.M. L. Rev. 15, 17 (2024).
[2] Compare Bautista v. Santacruz, 2025 U.S. Dist. LEXIS 269220 (C.D. Cal. 2025), stay granted by 2026 U.S. App. LEXIS 6750 (9th Cir. 2026), with Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026).
[3] Calvin’s Case (1608) 7 Co. Rep. 1a, 17a-17b (Eng.) (“All infidels are in law perpetui inimici, perpetual enemies (for the law presumes not that they will be converted, that being remota potentia, a remote possibility) for between them, as with the devils, whose subjects they be, and the Christian, there is perpetual hostility, and can be no peace.”), extended by Sir Thomas Grantham’s Case (1687), 3 Mod. 120, in John Baker, Sources of English Legal History: Public Law to 1750, at 453 (2024), explained by Holly Brewer, Creating a Common Law of Slavery for England and its New World Empire, 39 L. & Hist. Rev. 265, 804 (2021).
[4] 2 James Wilson, Collected Works of James Wilson 1048–49 (Kermit L. Hall & Mark David Hall eds., 2007).
[5] Id. at 1046.
[6] Joshua J. Schroeder, Embracing the Stranger Part One: How to use Trespass on the Case to Extend Rights to Foreigners, SchroederLaw, Working Paper No. 109 2026, at 24.
[7] 2 Wilson, supra note 4, at 1048–49 (noting the unanimous American rejection of Coke’s opinion in Calvin’s Case that was used to preclude the Americans of their common law rights); John Adams & Jonathan Sewall, Novanglus and Massachusettensis 177 (1819) (“[I]f we are not annexed to the crown, we are aliens, and no charter, grant, or other act of the crown can naturalize us or entitle us to the liberties and immunities of Englishmen.”); cf. id. at 115–17 (“But America was not vacant country; it was full of inhabitants; our ancestors purchased the land.”); Jeremiah Dummer, A Defence of the New-England Charters 11, 23 (1765) (noting that the Americans “fairly purchased their lands” unlike the Spanish conquistadors, the English planters “assured the Americans, that they did not come among them as invaders but purchasers”).
[8] Joshua J. Schroeder, The Dark Side of Due Process: Part I, A Hard Look at Penumbral Rights and Cost/Benefit Balancing Tests, 53 St. Mary’s L.J. 323, 339 (2022) (quoting Oliver Wendell Holmes, Law in Science and Science in Law, 12 Harv. L. Rev. 443, 457 (1899)).