On Saturday, I offered some faint praise for Chief Justice Roberts's majority opinion in Allen v. Milligan–truly, faint praise, as I commended the Chief for (probably) writing a sincere decision he actually agrees with. Roberts barely cleared a fairly-low bar–not much to write home about. Now, having finished reading all 112 pages, here comes the criticism. To start, I'll focus on textualism.
In Bostock, Justice Alito coined one of the most-memorable lines since Justice Scalia's passing: he charged Justice Gorsuch with piloting a "pirate ship" under a "textualist flag." Allen, alas, couldn't even be called a pirate ship for textualism. The Chief hoisted a white flag of textualism–it was a complete and total surrender to Gingles v. Thornburg (1986), the worst excesses of William Brennan's anti-textualism. Justice Alito explained in his dissent:
Gingles was decided at a time when the Court's statutory interpretation decisions sometimes paid less attention to the actual text of the statute than to its legislative history, and Gingles falls into that category. The Court quoted §2 but then moved briskly to the Senate Report. Today, our statutory interpretation decisions focus squarely on the statutory text.
