"It is not a coincidence... that judges appointed by Republican and Democratic presidents have divided along party lines in these cases."

"I do not believe this is because Republicans dislike Obamacare and Democrats like it. It is because Republican presidents now appoint judges who stick to textualism even when it leads to harsh results while Democratic presidents are more likely to choose judges who will look at the big picture and the human costs, when they’re parsing the words of a law."

Writes lawprof Richard L. Hasen.

My question for Hasen: But if a judge is going to look at the big picture and the human costs, won't that perception include his likes and dislikes?

I think the answer must be yes, and if so, I believe Hasen — wittingly or unwittingly — conceded that textualism does constrain a judge. Yes, this person — this Scaliaesque entity — will not save us from harsh results, but at the same time, this means that the textualist's idea of what results are, in fact, harsh never becomes part of the analysis.

ADDED: What, if anything, is wrong with Republican Presidents choosing textualists and Democratic Presidents choosing nontextualists? (Maybe that isn't what's happening, but we can assume it is, for the purpose of discussion.) Why isn't that what a liberal should like best (aside from preventing any Republican Presidents from ever appointing any judges)? What would the nontextualist conservative do with clearly written statutes that seem "harsh" to him or impose what he calculates as "human costs"? Does Professor Hasen really want this character's "big picture" trumping the words of legislatures?

AND: I'm trying to imagine what this out-and-proud conservative creative-rewriter of statutes would do. Imagine an arch-conservative President appointing stalwart conservatives with strong visions of the good who feel free to fix statutes to save us from harsh results and human costs. Obviously, Hasen would hate that, and yet it's so tempting to excoriate the textualist conservatives for their textualism, even when you know damned well you'd really hate their nontextualist work. But I think most laypersons think textualism is what a judge should do, and a judge who emerges from the cloak of textualism is much easier to criticize.

ALSO: A textualist may think he can discipline legislators into writing their statutes clearly, but what can such a project mean with a sprawling text like the Affordable Care Act? Did anyone even read it? Was any legislator in a position even to perceive the loose ends that needed tying up? The original act was intended to coerce the states by putting all of the Medicaid funding at risk. The Supreme Court saved Obamacare by rewriting the statute so that only the Medicaid extension would be lost, otherwise the spending power would not have supported the scheme.

A Scalia majority would have taken the entire statutory scheme down in 2012, and we wouldn't be talking about this new set of cases.

In the new cases, no one can find the text needed to make the federal exchange work, and it's no surprise that there's nothing in the text that addresses the remnant of the ACA that was left after the Supreme Court saved us from what Chief Justice Roberts — in his Republican-appointed nontextuality — might have considered a "harsh result."