Keith Blackwell: Originalist Textualism 101 for Practitioners

Episode Synopsis: Originalist textualism is a way of interpreting the law that can often feel a bit like stepping into a time machine. In this episode, former Justice of the Georgia Supreme Court, Keith Blackwell, guides us through originalist methodology and gives important context to the legal debates happening today and in the future. Blackwell breaks down the fundamentals of the practice in a way that can make you a more effective advocate.

Podcast Transcript: The following is a transcript of Episode 20 of The Advocate’s Key podcast hosted by attorney Scott Key. Other episodes can be found at Apple PodcastsGoogle Podcast, and Spotify.

Justice Blackwell: The first thing I do is pull out the code book, and it says right there at the bottom of the code section, it tells you the source of that code section. You know, it’s going to list when the law was originally enacted and then any acts after that amended that code section. And so you, kind of, just trace your way back through history and see how that code section changed over time. And you can do that in most law libraries, and all librarians are always very happy to help with this, sort of, research. And then it really can cast some of the case law in that space in a very different light.

Scott: A word of warning. This podcast gets dense and technical, but don’t let that deter you. There’s a payoff here that is well worth it. If you want to be an effective advocate in the Supreme Court of Georgia, particularly with an issue of statutory interpretation or interpretation of a constitutional provision, in Georgia or in any appellate court where there is an originalist or a textualist bit in how cases are approached, you would do well to understand the methodology. And if you listen to this podcast, you will reach a better understanding of that methodology.

And secondly, if you really want to grasp what is going on in the news lately, particularly with respect to the fate of Roe v. Wade…of course, whenever this podcast is listened to, the news may have changed. But if you want to understand the debate, the discourse regarding what is going on with the status of Roe v. Wade, you would do very well to understand textualism and to understand how textualists and originalists go about doing their job. Agree or disagree, it’s important to understand it.

Also, and I will add this, Justice Blackwell is a brilliant guy. And now that he is in private practice, he is one of the leading appellate lawyers in the state, if not, the country. And so it is worth getting to know him a little bit better and to understand his story and how he approaches cases. And if you don’t know him, you’ll come to know him as part of listening to this podcast.

In the snippet you just heard, which you’ll hear in greater context when we get into the podcast, he’s talking about the first step in approaching a statute from a textualist or originalist [inaudible 00:02:43] or approach. And I had probably my first experience of approaching the case this way after hearing Justice Blackwell present on a similar topic at a CLE I attended in the fall. It took me into the law library, it took me into the dusty books, pulling up old code books and, kind of, going on a deep dive. And it feels a little bit like time traveling combined with the scavenger hunt combined with being something of a textualist detective. So, agree or disagree with the approach, it’s here to stay. It’s here to stay for the foreseeable future. And if you’re an advocate practicing in the court, and there’s a textualist approach that you can take that’ll help your client win, understanding it will help you develop a set of advocacy tools.

So, I think, this is an important podcast. Is it tense and technical? Yes, it is. I think the payoff is well worth it. I think it’s a very fun podcast. And I appreciated Justice Blackwell for taking the time to be on the podcast with me. So without further delay, I give you Keith Blackwell. Justice Blackwell, and I’m still going to call you Justice Blackwell because I can’t get out of the habit, it’s really great to have you on the podcast.

Justice Blackwell: It’s great to be here, Scott.

Scott: I’ve been looking forward to this. I mean, just in general, I’m happy to have you on the podcast. And I heard you speak at a CLE that I attended back in the fall, and I took literally…probably the best notes I’ve ever taken in a CLE and used the things you taught in a brief. And I’ve always thought of the topic we’re going to talk about, which is textualism and originalism. I’d always thought about it as something that judges do and not something that practitioners do. So I’m going to be very excited about, kind of, getting into this topic.

Justice Blackwell: Well, you know, it’s a topic that I did a great deal of work on when I had the privilege of serving on the court, and it’s an interesting topic. And it’s one that still interests me, and it is one that, I think, practitioners would benefit from having a better understanding.

Scott: Well, let’s start off a little bit, and this is something I ask every podcast guest. Who is Keith Blackwell?

Justice Blackwell: Well, I grew up in Ball Ground, Georgia, which is a very small town in the far North end of Cherokee County. My dad was an aircraft mechanic in the Georgia Air National Guard. He did that for 30-plus years and was stationed most of that time at Dobbins Air Force Base in Marietta. And so I was in a sense an air force brat who stayed in one place and didn’t move around a whole lot. My mom was a school teacher who then stayed home with me when I came along and was a stay-at-home mom and then went back to work as a public librarian when I got a little older. But I grew up in Ball Ground, a very small town, kind of, Mayberry-like, when I was growing up there in the ’70s and ’80s. I went to the University of Georgia where I did my undergraduate work, went to law school at the University of Georgia, and then went into practicing law.

Scott: What got you interested in law school? Was that something that you grew up wanting to do or something that emerged when you were in college?

Justice Blackwell: Well, it didn’t emerge. It emerged before college, but I wouldn’t say I had grown up always wanting to do that. I actually didn’t know any lawyers when I was growing up, but I did have a lot of military and law enforcement in my family. And so, actually, around the time I was in, I guess, probably, you know, 8th or 9th grade, what I really wanted to do was to go be a GBI agent. The problem was, once I got into high school and started looking into the qualifications, at least at that point in time, you had to have a minimum uncorrected vision to get into the agent program. And I didn’t meet that. But they had a waiver process where if you had certain credentials, you could qualify for a waiver of, for instance, the eyesight requirement. And one of those credentials was law degree. That’s frankly what first got me thinking about going to law school.

Scott: You wanted to get around the vision waiver, and a law degree would get you there to be a GBI agent?

Justice Blackwell: That’s right. Now, by the time I actually got to law school, I had, kind of, shifted my ambitions a little bit and intended to actually practice law and didn’t have a desire anymore to go be a law enforcement officer. But that’s what first got me thinking about law school.

Scott: I got you. Once you got to law school, what, kind of, happened there to lead you down a different path?

Justice Blackwell: It may have even been before that. Because I was interested in potentially going to law school, the summer after I graduated high school, I actually had my first law job. And that was as an intern in the Cherokee County District Attorney’s Office. Garry Moss was the district attorney then. And, you know, I worked with some good folks there, including Rachelle Carnesale, who’s on the bench now, Meg Daly, who was the district attorney later down in Chatham County. They were assistant DAs in that office. And so I was in that office the summer between high school and college and, I think, a couple of other summers during my undergraduate time working in the DA’s office.

You know, in the beginning, it was just, kind of, going to court and watching what was going on and filing paperwork for them. But by the end, I was helping work on briefs, and I was, kind of, learning how to do a little legal research even before I went off to law school. So, during that time, I think, I still had an interest in law enforcement, but that, kind of, led me to think that I might be able to do more good in law enforcement as a prosecutor than as an officer on the street or an agent.

Scott: And did you work for various DA’s offices when you were in law school?

Justice Blackwell: Yeah, I continued to do work for Garry Moss’s office. I also worked for Lydia Sartain’s office in the Northeastern Circuit, Hall County and Dawson County during that time. And worked a lot with…Jason Diehl [SP] was an assistant DA at that time, and so was Lee Darragh, and I worked with two of them a lot.

Scott: Yeah. I still do a good bit of work with or before them. So, those names are still very familiar in that area. And so coming right out of law school, you went to a DA’s office.

Justice Blackwell: I did at some point. Actually, when I was in law school, I was encouraged by some professors who, kind of, pulled me aside and said this to me, they said, you know, “We understand that you have come to law school, and you are still intent on going back to your hometown and being a prosecutor. And that is an honorable thing to do. That is a noble thing to do. That would be a great thing for you to do. But before you commit yourself to that, we think you ought to understand what all your options are.” And, I think, they appreciated that coming from a small-town background, not knowing any lawyers growing up. Really, all I knew about the law practice was what I’d seen on television. And so really didn’t have a full appreciation for the range of things that you can do in law practice. And so they encouraged me to pursue some other opportunities, and in particular, they encouraged me to apply for a judicial clerkship.

So, when I was in law school, I applied for a clerkship on the Eleventh Circuit with Judge Edmondson. I was fortunate enough to clerk there. When I left the clerkship, I got what proved to be some sound advice, which was, “Go work at a law firm for a few years, and then if you still want to go prosecute, go prosecute. But go work at a law firm for a few years starting out among other things. It pays a little better than prosecuting and can help you get your student debt behind you.” So, after I clerked for Judge Edmondson at the Eleventh Circuit, my first stop was here at Alston & Bird as a first-year associate. I stayed here for probably about three years. And then I went to the Cobb County DA’s office because I still had the prosecution bug at that point in time.

Scott: Right. What kind of work were you doing in your initial stand at Alston?

Justice Blackwell: I was doing a couple of types of work. I was in what they called at that time their government and investigations practice group. And so I was doing or I’m sorry, antitrust and investigations practice group. I was not doing any antitrust law. I was doing white-collar criminal investigations, internal investigations, things of that nature. And I was also doing a fair amount of class action defense, mostly consumer fraud class actions in the telecommunications industry.

Scott: Okay. So, yeah, prosecuting in a county DA’s office is a far cry from that.

Justice Blackwell: It is. You know, I’ve had…and, I think, it’s been a benefit to me. But I’ve had a lot of different kinds of law practices that have been very different over the years. I’ve enjoyed the diversity of that. I think I’ve learned a lot along the way. But it’s also just made life more interesting, or as Justice Peterson used to say, it could reflect that. It could also reflect that I just can’t hold down a job [crosstalk 00:12:31].

Scott: Right. When you got to Cobb, were you assigned to a judge? And were you just, kind of, out on the line doing prosecutorial work that was in a particular courtroom?

Justice Blackwell: Yeah. I was just a line prosecutor in Judge Ken Nix’s courtroom. There were two of us assigned to that courtroom, and we just split the cases that came into that courtroom. We had other prosecutors in other units who would come in to prosecute crimes against women and children. But other than those, we, kind of, handled the full run of felony prosecutions from, you know, felony drug possession and felony shoplifting, all the way up through kidnapping, armed robbery, and murder cases.

Scott: I’m gonna think probably you did more litigating in a courtroom in your first month there than you probably did in three years at Alston.

Justice Blackwell: Yeah. That’s exactly right. I was certainly in the courtroom a lot more. I was on my feet a lot more, you know, from trying cases to the more routine stuff that prosecutors do every day, probation revocations and pleas and motions hearings.

Scott: And did you stay there assigned to that particular judge? Did you go to a different unit? I’m trying to remember what…I know roughly when you were in Cobb, but I’m trying to remember how that office was organized then.

Justice Blackwell: Yeah. I was there for about three years, and that’s when Pat Head was the district attorney. I stayed in Judge Nix’s courtroom the entire time that I was there.

Scott: And did you go straight from there to the Supreme Court?

Justice Blackwell: No. I went straight from there to the Parker, Hudson, Rainer & Dobbs Law Firm in Atlanta. When I was at Parker Hudson, I joined the firm as an associate-made partner shortly thereafter. There I was doing general commercial litigation, although with an emphasis on banking law and representation of banks and other financial institutions, which is really, kind of, ironic because…I’ll tell you a quick side story about the bar exam. I worked the summer that I took the bar exam at a law firm. And I didn’t have the opportunity to take a bar review course. So, I set aside two weeks to study for the bar on my own before the exam, and I, fortunately, found a classmate of mine…

Scott: Two weeks.

Justice Blackwell: Two weeks. I figured that I could cover a subject in, you know, about eight hours, and I could cover two subjects a day. And so I found a classmate of mine who had taken the bar review course and who did have some of those outlines and things to study with me. We were not seeing each other at the time, but today, she is my wife. But Angela and I started studying. The first day we started studying together, she asked me, she said, “Okay, what subject do you want to start with?” And so I looked over the list of subjects, and I said, “Why don’t we start with commercial paper?” And she said, “Great.” And so she starts pulling out her outline and her notes and all this stuff on commercial paper.

And once she gets organized, she says, “Okay, where do you want to start?” I said, “Well, first, quick question. What is commercial paper?” Because I’d gone all the way through law school intending to just go prosecute. Most of my elective course work in law school had been on the criminal side or constitutional law issues or evidence law, things of that nature. I’d never taken any of the corporate law classes, had no clue what commercial paper was. It was, kind of, ironic. I later ended up with a practice where I was representing banks on a lot of commercial paper litigation.

Scott: Oh, my gosh. Well, I want to go back to studying for the bar in two weeks. It scares me to…I mean, I passed it a long time ago, but that scares me to even think about. What else did you have going on that summer?

Justice Blackwell: I was going to clerk in the fall for Judge Edmondson, and at that point in time, I had only worked for DA’s offices interning for them. And so he encouraged me to go work for a law firm that summer just to, kind of, see the other side of the law before I started clerking for him. So, in addition to those professors who had pulled me aside in law school, he was also a big part of the reason that I was exposed to other types of law practice. And so I was actually working as a summer associate at the Paul Hastings Firm that summer. And so that’s what was consuming most of my time. That’s why I didn’t do the bar review course. But I did have a clerkship for a year. You don’t have to be admitted to the bar to be a federal law clerk. And so I figured, you know, even if this goes badly, I’ll have a couple of opportunities to make it up before I actually need a license.

Scott: Yeah. Still, that’s pressure. That’s really good. You were just doing a subject a day or two subjects a day?

Justice Blackwell: Two subjects a day.

Scott: Yeah. That did it. That’s one way to do it.

Justice Blackwell: You know, it’s pass, fail. I may have gotten a C, I may have gotten an A, but it’s pass, fail. And I got the pass, and that’s all that counts.

Scott: Yeah, that’s all that matters. So, sort of, making a transition, you go from doing the banking law job to, I think… Were you on the Court of Appeals for a little bit? My memory is just going away on me now.

Justice Blackwell: Yeah. So in 2010, Governor Perdue appointed me to the Court of Appeals. I served there for about a year and a half, and then Governor Deal appointed me to the Supreme Court.

Scott: Okay. And then you were there until very recently?

Justice Blackwell: Yeah, I was there for eight and a half years. I stepped down from the court in November of 2020 and then resumed…took a couple of months off from Thanksgiving through MLK Day to spend some time with my kids when they would have time off for the holidays. And then in January of ’21, I went back into practice.

Scott: Okay. I know I’ve seen you. The class I teach with Judge Dillard, we watched an oral argument of yours. Are you doing primarily appellate law at Alston now?

Justice Blackwell: I am focused primarily on appellate issues. It includes but is not limited to representing clients in appeals. I found, frankly, one of the more rewarding aspects of an appellate practice is in larger cases getting pulled onto a trial team as, kind of, an appellate adviser or consultant, if you will, to be the lawyer on the team who’s thinking about not just presenting these issues in a way that might get your client a win from the trial judge or from the jury, but also presenting them in a way that would allow you to get a win or preserve a win if the case winds up at some later point in front of an appellate court.

Scott: So, kind of, the embedded council role as I’ve heard it called.

Justice Blackwell: Yeah. Clients can’t afford to do that in a lot of litigation. There are some cases where the stakes are high enough to warrant that. And I’ve really enjoyed that. I mean, I prefer appellate practice to trial practice. I tried cases, you know, regularly when I was in the district attorney’s office. And I never liked the unpredictability aspect of it.

I always like having a closed record, which is what you have when you go up on appeal. I never liked putting witnesses up on the stand, and you never know what’s going to come out of their mouth. And sometimes no matter how much time you spent prepping them, something’s going to come out of their mouth that you haven’t heard before. And so I find that anxiety-inducing, and so I’ve always just preferred, kind of, the closed record where we’re arguing more about the law than the facts in the appellate courts.

But I’m glad I had that experience trying cases. I think it’s important for appellate practitioners who have done some time in the trenches to understand what trial lawyers go through. And it makes me, I think, better able to work with trial lawyers as, kind of, a team player and a collaborator when I get pulled onto their team to start thinking in advance about potential appellate issues.

Scott: It certainly is a great luxury to say something on Microsoft Word in a sentence that you shouldn’t have said and hitting the Delete key versus being in a courtroom and saying something you should have said, and there’s no Delete key. So, that part is the part I like most about appellate, I think.

Justice Blackwell: I agree. I do like all the opportunities for deliberation, both on the part of the lawyers and the court.

Scott: Right. I do want to ask you this and watch you do an argument. What is it like to argue a case to the court where you used to sit?

Justice Blackwell: You know, a lot of people have asked me if it was a strange experience, and I wondered before I went in there if it would be strange before I went in there for the first time. But it really wasn’t that strange. It’s a courtroom that I’m comfortable with, and, you know, I had good counsel on the other side, which always helped make for a good lively argument. I know the judges. And I don’t know. It was fun.

I mean, people asked, you know, why I would leave the court when that meant that I might have to go argue in front of, you know, Justice Nahmias or Justice Peterson or some of these other folks that are known to be very aggressive questioners of lawyers who are at the bar. And I tell them, “Well, you don’t understand. When I was on the court, in the bank room, I would argue with Justice Peterson and Justice Nahmias every week.” So…

Scott: It’s not any different.

Justice Blackwell: …I’m just trying to get paid a little better for it.

Scott: Right. So I was going to ask you…and this is, kind of, the main thing I wanted to talk to you about and just had an enormous benefit from having you…listening to you present at a CLE that I attended. I want this to be, kind of, a textualism or originalism 101 for practitioners. But I wanted to, kind of, start, where did you get your interest in that? I don’t know if it’s a philosophy but that way of deciding cases or approaching cases.

Justice Blackwell: I don’t know. I can’t point you to a moment in time, you know, that, kind of, piqued my interest in that. I think it probably developed over time and probably even started developing before I got to law school when I was working in the DA’s office and doing some research. I will tell you, I was working in the DA’s office before I got to law school on a motion to suppress issue, and this would have been in the mid-90s. I graduated high school in ’93 and finished college and went to law school in ’96. It would have been sometime in that range.

I was doing some research on a motion to suppress issue, and I got really excited because I, kind of, developed a theory that the state might be able to prevail under the Leon good faith exception. But then I started looking around at Georgia Law, and I ran across this case called Gary v. State that said Georgia doesn’t acknowledge the Leon good faith exception. And so I really started, kind of, digging into Gary and looked at it and thought, “Some of these things just don’t make sense to me. Some of the way that Gary court’s going about interpreting the statute just doesn’t make sense to me.”

I later would go on to…once I got to law school, that was actually the subject of my law review note was the Gary decision. That case in particular, kind of, stuck with me for a while. I just thought the statutory interpretation in that case struck me, even before law school, is not right and not the way courts ought to be construing statutes. And so that, kind of, stuck with me for a long time.

Scott: Because what you learn is when you dug through the precedent. Of course, I’m a criminal defense lawyer. I may, you know, get communicated. If you look into the precedent and you follow it all the way back, what you found was there’s not much of a statutory basis. The reason why we didn’t have the Leon good faith exception was Georgia has its own statute, and that was being interpreted in such a way that there wasn’t a good faith exception. Is that pretty accurate?

Justice Blackwell: That’s right. But when you actually dug back through the historical sources, it became pretty apparent, if you actually look back to the moment in time when the statute was enacted, that that wasn’t what the statute meant, at least originally speaking. So, anyway, there were a lot of aspects of the interpretation in that case that, kind of, bothered me. Maybe that’s what, kind of, ultimately set me off on the textualist and originalist path.

Scott: Okay. And, of course, when we’re recording it, you know, if I open my Twitter feed, there’s quite a…not a very nuanced debate, but there’s a debate going on in Twitter based upon some headlines this week. You know, textualism and originalism is very much, I guess, in the news and the subject of discussion among lawyers on Twitter. But for someone who doesn’t know or maybe someone who isn’t even a lawyer, what is textualism?

Justice Blackwell: Yeah. And I’m glad you asked it that way, Scott, because I do think it’s important to separate out textualism from originalism. You know, the approach that I had on the Supreme Court as a judge was what I would describe as an originalist textualism, but they’re really two different components. So, let’s talk about textualism for a second.

The idea behind textualism is that any positive law, whether it is a constitution, whether it is a statute, an ordinance, a regulation, any positive law, draws its meaning from its text. I mean, because legislators, the promulgators of constitutions, the promulgators of statutes, the people who promulgate regulations, they do so by putting words to paper. And those words carry some meaning, and whatever the meaning of those words are is the meaning of the constitution or the statute or the regulation. That is the idea behind textualism.

Scott: Okay. So how would you distinguish textualism from originalism then?

Justice Blackwell: Well, then the question becomes, how do you ascertain the meaning of the words? Once you have committed to an idea of textualism that it draws its meaning from its words, the question then becomes, well, what do those words mean? And do we look at what those words mean today, or do we look at what the words would have meant at the time the law was adopted? And that doesn’t matter much for a law that was adopted in the last 10 years, usually. It can matter a great deal though if you’re talking about a law that was adopted a couple of hundred years ago because words can drift in meaning over time.

And so originalism is based on the idea that a law means now what it meant at the moment it was enacted. It is known as fixed meaning. It has a fixed meaning that a law means now what it meant at the moment of enactment. If the law is to change, then it should change through the democratic process of, in the case of a constitution, the people changing it, or in the case of a statute, the legislature changing it.

And so the result is, for courts, if you adopt this originalist approach to ascertaining the meaning of text, then it’s important to…then you have to go through the endeavor of almost going back in a time machine and trying to figure out what these words most reasonably would have been understood to mean at the time the law was enacted.

Scott: And what are some tools? I mean, what are some tools that we look to to do that?

Justice Blackwell: I mean, it’s a full range of tools for figuring out what words mean. The first clue is the words themselves, and there, you know, you can resort…when we’re talking about the meaning of a law, you can resort to case law discussing the use of those words and what they may mean in other contexts and extrapolate from that meaning that you may be able to use in construing the law at hand.

You also can look to dictionaries, although, you know, it is significant if you’re talking about a really old law that you look to a dictionary that was roughly contemporaneous with the enactment of the law if you’re doing an originalist textualism. You know, those are some sources.

There’s, kind of, a newfangled approach called corpus linguistics that, I think, has some potential to be useful in a range of cases. I don’t know that it will supplant the other tools. But it’s basically a tool for using a database that compiles a lot of literature and journalism from a period in time so that you then can search that database for words that appear in a constitutional provision or a statute to see how those words were actually used in literature and journalism during that period of time.

Scott: So you’re looking beyond legal text at this point, and you’re just looking at a newspaper article reporting some event. And it could have been 200 years ago. When people used that word, this is how that word was situated or this is what that word meant.

Justice Blackwell: Yeah. I mean, it is just a tool, Scott. And one thing that’s important to remember is when you’re a lawyer, when you’re a judge, your goal is to figure out what these words most reasonably would have been understood to mean when used in a legal context, because, you know, sometimes words have special meaning when they’re used in a legal context, and sometimes it’s different than how it’s used in a colloquial context. So you have to be careful in relying on tools like that, but it can give you some indications as to how people of the time customarily use certain words. But again, it’s just a tool.

You can’t rely too much on any one of these tools. They’re all just tools in the toolbox. And that’s just the first step. Those are just the tools for looking at what particular words mean. Then you go broader than that. You look at context. You look at semantic context. You look at, you know, the whole statute. You don’t just look at one sentence of a statute, even though that may be what the parties are arguing about in a particular case. You look at the whole statute. You don’t just look at that whole statute alone. You also look at any other statutes that are, we used to say, in pari materia with that statute. I just think of that as you look at all the statutes in this area of the law.

So I frequently, if I am concerned with the meaning of a particular code section, I will actually pull out the code book, and I will peruse that entire article or title of the code to see what else is in there and how this particular section interacts with other provisions, how it fits with other provisions, how it’s supposed to work with those other provisions, because that context gives me clues as to what these words might mean. But you don’t just look at other statutes. You also look at all the background law that was out there at the time of enactment. You look at what the constitution said at that point in time. You look at what the case law said at that point in time. You may look at…if it’s on an issue that was also at some point in time covered by the common law, you also look at what the baseline common law rule was. And that is all context for understanding the statute.

Scott: Now, I’m going to go back just a second. So, you said that originalism is a form of textualism or it’s a branch of textualism. Is that right?

Justice Blackwell: It is. I think you could have a non-textualist originalism, although I’ve never subscribed to that approach, where you wouldn’t be grounded to the text, instead, you’d be looking to purpose more than text, but you’d be looking to original purpose.

Scott: Gotcha. Can you give me an example of that?

Justice Blackwell: I can’t offend. I mean, I think, certainly, the form of originalism that is most discussed today is an originalist textualism.

Scott: And I know that you were the author of Mobley. And in a moment ago, we were talking about, you know, the law review, you know, you did and about the Leon good faith exception. Mobley was the vehicular homicide case where the Leon good faith exception was found to have applied, and that’s a fairly recent case. What is the role of stare decisis when it comes to…?

So, I know that what you did was you looked at the case law and you said, “This case law doesn’t have a firm basis because the statute doesn’t really say what these original cases said that it said.” So, to do that, you do have to dispense with sometimes one or a line of cases. What is the role of or the value of stare decisis when you are applying this approach to the law?

Justice Blackwell: Scott, I don’t know that your view of stare decisis depends much on your view of the proper methodology for interpreting a constitution or a statute. I mean, even if you had a non-originalist methodology for figuring out what a constitution means or what a statute means, you still could attach more or less significance to prior precedence in the area. So, really, I view it as, kind of, a separate question and one that arises more from…and this would probably be a topic for another program, one that really depends a great deal on what you view as a holding of a case, how broadly you view the holding of a case.

I will say I do think the general rule is that courts stand by what questions…stand by their resolution of questions they have answered before and that that is proper that courts do that, that they should do that for a variety of reasons. One is just the inefficiency of starting over again every time you get a new case. Another reason is for the benefit of predictability and consistency in the law. And another is just, kind of, the fundamental fairness idea that like cases ought to have like outcomes, even when they’re decided by different courts or when they’re decided at different points in time.

Scott: Yeah. And the interesting thing is, is that what a holding in a case is, is not set and it’s often up for debate. And, you know, my motions hearings would be a lot shorter if everyone could agree on what the holding of a case is. You know, advocates go into court, and we push the holding or we challenge what the holding is. You know, sometimes we want to look very carefully at the facts and say that the holding is set to a very, very particular set of facts. And then sometimes it’s in our interest as lawyers to say that the holding is more general. So, I do get what a holding is for stare decisis purposes is very…it can be fluid, I think.

Justice Blackwell: Yeah. I think that’s right. And, I think, there is a difference. And I certainly when I was on the court viewed there as being a difference between the court disapproving language in a prior case and the court overruling a prior case. And to me, overruling a prior case was warranted. That required, kind of, a full stare decisis analysis because you are saying that this case, not only we disapprove of it today, but it was wrong the day it was decided, and we are completely discarding it holding in all.

There are other cases where I don’t think it’s necessary to go…for a court to go through the full stare decisis analysis because you’re not suggesting that the prior case was wrongly…that the outcome of the prior case was wrong. You’re just saying that something the court said in the course of its opinion may not have been quite right.

Scott: And you can disapprove of that language, but nevertheless, the holding remains the same.

Justice Blackwell: That’s exactly right.

Scott: And, you know, again, this is just, sort of, in the air this week. Opponents of textualism will…and tell me if you think this is, kind of, what you commonly hear, and I may not be articulating the best critique of it. But, I think, opponents of textualism often say, “Well, you know, the constitution’s a very old document.” And, you know, they’ll point to technologies that exist now that didn’t exist then and say you can’t possibly apply it in a modern context, you know, when you’re applying the Fourth Amendment. I’m not saying this is necessarily my view, but this is what I hear. “How can you even apply the Fourth Amendment to automobiles when…or to the contents of a jump drive on a computer or a computer hard drive when those things didn’t exist when the Fourth Amendment came to be?” Is that the common critique of textualism that you hear that you just…? You can’t possibly apply it because we live in such a different world than we were…than we lived in when the constitution came about or when older statutes were enacted.

Justice Blackwell: Yeah. That is the gist of one of the very common criticisms. It actually plays into a couple of different types of criticism. One takes, kind of, a fundamental issue with this idea that the meaning of a law becomes fixed at the moment of enactment. There are some people who, kind of, take issue with that very principle and take the view that when a law is enacted, it is meant to permit judges to change its meaning over time consistent with some overarching principle, whatever that may be, you know, justice and fairness and equity or whatever.

There are others who take the view that they don’t disagree so much with the idea of fixed meaning based on principle, but they just disagree with practicality of it and the difficulties that are inherent in applying rules that were developed a long time ago to modern technologies in modern society in modern context.

And I will readily concede that textualism and originalism do not always readily supply easy answers. Sometimes even if you are in a very principled way applying a textualist or originalist approach to methodology, it doesn’t always lead you to a single answer. It doesn’t always lead to an easy answer. And oftentimes it still allows for a range of answers about which reasonable people can reasonably disagree.

Scott: Is that the best critique? When you hear those who criticize the approaches, what else do people say?

Justice Blackwell: You know, they sometimes also say that lawyers and judges are not trained as historians, and so how can they go back and do proper originalist analysis? But originalist analysis is a very specialized, sort of, history. It is a historical analysis, but it’s not, kind of, pure academic history. It is legal history for a very particular purpose, and that is figuring out what a particular law means. And I actually think judges and lawyers are quite well equipped. At least judges and lawyers who were trained in, kind of, the classic legal education are very well equipped to do that sort of thing. And I don’t know that trained academic historians…they’re very good at academic history. I don’t know that they have a monopoly on being able to do this different, kind of, legal analysis.

Scott: You know, Georgia State puts out the peat sheet, and it’ll summarize the new statutes that come out and that they may interview the drafter, you know, the legislator that dropped the bill on the hopper or who co-sponsored it. And they may interview the chair of the committee. Why is statutory history so problematic in trying to interpret the meaning of statutes?

Justice Blackwell: Let’s differentiate first, and maybe my terminology is a little mixed up. But I always differentiate it in my mind between legislative history and statutory. And so, I think, statutory history is perfectly permissible, and, in fact, I regularly used it. And so, statutory history, to me, is the evolution over time of a statute that is enforced today. A version of it may have been enacted 50 years ago, and then it has been amended six different times. And so we’ve seen seven iterations of that statute. And viewing the evolution of the statute itself over time, I think, is perfectly permissible.

Scott: You could look at a statute that was around in some form or fashion from, say, 1880 and see maybe a period in time where some word or some phrase changes, or you get additional language that goes in. And you can, sort of, look at that, and you can ask yourself, “Well, why did that language get added, or why did that term change?”

Justice Blackwell: No, that’s exactly right, and that’s also important in making sense of old case law considering the statute because it may have been construing…

Scott: Different statute.

Justice Blackwell: …a different version of the statute. And the differences between that version and the version you have today may or may not be material depending on, you know, what you’re arguing about today. But they might well be material. And so, before you start relying on really old case law, you need to be sure that that case law is interpreting a version of the statute that is at least substantially or materially the same as the one you’re arguing about today.

Scott: And if there was a change, you know, you could look to the case law from…maybe before the change to see maybe why it came about. I was going to ask you in, sort of, doing that type of work, what value do you find in preambles to statutes? Because, you know, you don’t always see those in the OCGA code book. But if you go back to Georgia Law, the Georgia Law Code, and you look through there, you’ll often find preambles to the bill. What value do you find in preambles to bills?

Justice Blackwell: There is value. I think they properly can be used to help you figure out what the operative terms of a statute meant. Here’s why. Here’s the difference, Scott, in relying on a preamble and relying on a committee report or what some chairperson or bill sponsor said at the time. A lot of textualism is about respecting the democratic process, and so it is about respecting the prerogative of the legislature to make laws. And, of course, the way they make laws has a couple of constitutional components. The way something…the legislature or some legislator, the way what some legislator wants to do becomes law requires a few steps. It has to be presented and voted on by both chambers of the legislature, and then it has to go over and be presented to the governor. And the governor will either sign the law or will veto the law, in which case, the legislature may try to override the veto. But it has to go through those procedural steps to actually become law.

The operative terms of a statute are themselves voted on by both chambers of the legislature, and they are presented to the governor, and the governor signs off on them. The same is true of the preamble. The preamble is part and parcel of the statute. And so while itself is not the operative language of the statute, it’s just prefatory language of the statute, and so lawyers are focused on what the operative terms mean. If the operative terms are clear, you don’t need to look to anything else. But if there’s some doubt about what they mean, you certainly can look to the preamble because the preamble, just like the operative terms, went through the democratic process, was approved by the House, was approved by the Senate, was approved by the Governor. That is not true of just what some committee chairman said. It’s not true of some committee report. Those didn’t get voted on by both houses of the legislature, and they didn’t get signed off on by the governor.

Scott: And it’s something of a moving target too. The person that drafted the bill and put it in the hopper might have meant the law to be one thing, but it would be very hard to enforce what was in that particular person’s mind when he drafted it when it was voted on by…you know, through various processes and as the legislation makes its way to the governor’s desk and then is signed.

Justice Blackwell: That’s exactly right. I mean, what one legislator says doesn’t tell you what their colleagues, you know, in the same House thought the legislation meant. Even a committee report that purports to represent maybe the views of the House of Representatives doesn’t tell you what the Senate thought about it, and it also doesn’t tell you about what the governor thought about it when the governor signed off on it. And so it’s almost impossible to, kind of, come up with a unified statement of legislative intent beyond the actual words of the statute they voted.

Scott: Well, okay, I’m gonna, kind of, change gears a little bit. Before I heard your CLE talk… I’ll admit, I’ve been practicing law for a long time, and I had always thought of the things we’re talking about as something that judges do. And I had not considered that this is something for practitioners to think about. If I’m a lawyer in a small-town law firm or I’m a public defender, why should I care about this?

Justice Blackwell: Well, you should care about it because that’s probably how, if your case winds up in the appellate courts, your case is going to be resolved based on principles like this. And so, you know, you can sit back and not make all the textualist and originalist arguments, but if it winds up in front of the Supreme Court, if it winds up in front of the court of appeals… I shouldn’t say that, I think, all the judges of both of those courts regularly employ a strictly originalist methodology, but I will say textualism, I think, broadly prevails among all the appellate judges in Georgia and probably nationally for the most part. I mean, as Elena Kagan said, we’re all textualists now, not all original textualist, but pretty much all textualists. So, you can sit back and not develop those, sorts of, arguments, but then you’re just, kind of, taking your chances with how this is going to turn out if it winds up in front of the appellate courts because, if you don’t try to do the work, the judges are going to do it on their own.

Scott: Even if neither side briefs it, it’s going to be approached at the court that way.

Justice Blackwell: I mean, that’s typically the case. Yes, that is how… Certainly, in Georgia, with our appellate courts over the last 10 years, they have regularly employed that even in cases where it’s not briefed. That’s just how they go about figuring out what laws mean. So, you know, you can take your chances that they’ll do it on their own and come up with hopefully an answer that benefits your client. But as a lawyer, I always want to try to help the court get to the result that would benefit my client.

Scott: In other words, this is just a great example of, “Know your audience.”

Justice Blackwell: That’s exactly right.

Scott: So now the young lawyer in the small town law firm who has an issue that may be going up on appeal is interested, and let’s just say this lawyer has…the firm has just a very basic Westlaw or Lexis plan. How would you recommend someone get started? Where would they turn…? What are some things they could do or places they could go or resources they could have?

Justice Blackwell: Yeah. If we’re talking about the constitutional…if we’re talking about the state constitution, for instance, I always recommend that lawyers try to have a couple of books on their shelf in Georgia. One is Walter McElreath’s “Treatise on the Georgia Constitution,” and the other is Albert Saye’s “Constitutional History of Georgia.” I think just having those two books on the shelf give you an awful lot of constitutional history that really takes you up through the constitution of 1945. I think McElreath’s goes through about 1912 or so, and Saye’s history goes up through 1945. But those will, kind of, get you through the constitution of 1945, and then all you have beyond that’s the modern constitutions in ’76 and ’83.

So on constitutional history, I would very much recommend, you know, having those two books on the shelf that if you have an issue about what the state constitution means, you can pull those down, and you can see what McElreath and Saye have to say about the origins of a particular constitutional provision.

When it comes to, you know, textualism more broadly, you know, for a long time, we had a dearth of, you know, readily accessible scholarship on how to do textualism. You had Sutherland’s like 20 volume set on statutory interpretation. But a very accessible one is a treatise that Justice Scalia and Bryan Garner put out, I guess…what was that? Maybe 10 years ago called “Reading Law.” And they go through probably about 30 what are called canons of construction or interpretive principles. They explain how those work generally in American Law. And, I think, it is an incredibly useful resource, and it’s in one volume. And, you know, I think, any lawyer who is regularly arguing about what statutes mean, they need to have “Reading Law” on their bookshelf.

Scott: Yeah. I’ll tell you what I did in a case recently, and this is the first time. But it was a pure statutory construction issue, and it was a cert petition that…it’s still up being considered, and I won’t go into the facts or anything. But, you know, I took the statute, and there’s a word in it that was interpreted in a particular way by the court of appeals. I looked at the statute, and then I looked at the Georgia Law Volume…you know, just the reference to the Georgia Law like the Georgia Code that was in the statute. And then I went to a university law library. And by the way, law librarians love to help you with things like this. So, it was, kind of, fun. I spent a day away from the electronic stuff, you know, with the law library and pulling code books off the shelf that probably hadn’t been pulled off the shelf in a very long time. And it was a very elegant way of approaching an issue of statutory construction. And then I went back having done that and traced the statute back to 1898. I then looked at the cases very closely that were cited in the court of appeals’ opinion and in the briefs. And I didn’t get the case until it was on search. So I looked at the cases in both briefs. The cases that everybody was talking about already in the case, they took on a different meaning when I did that.

Justice Blackwell: Yeah. I think that’s what I always tried to do as a judge, and it’s what I still try to do as a lawyer. I mean, if we’re talking about a Georgia Statute [inaudible 00:55:23], the first thing I do is pull out the code book, and it says right there at the bottom of the code section, it tells you the source of that code section. And so it lists out…you know, it’s going to list when the law was originally enacted and then any acts after that that amended that code section. And so you, kind of, just trace your way back through history and see how that code section changed over time. And you can do that in most law libraries. And as you said, that’s been my experience too. Law librarians are always very happy to help with this, sort of, research. And then it really can cast some of the case law in that space in a very different light.

Scott: Absolutely. Yeah. It was oddly fun. I mean, but I’m a bit of a nerd. I don’t know that everyone would think that was fun, but it was… And then when the brief came together, there was an elegance to it. That was my takeaway from your talk is that really this isn’t just something judges do, that if we want to approach the judges, that…you know, no matter how you feel about this school of thought, your audience…particularly if you’re in Georgia at the Supreme Court, and, I think, to some extent, the Court of Appeals, this is how your audience thinks. And so giving them, you know… And if they’re going to be doing this work anyway, why not make it easier?

Justice Blackwell: Yeah. That’s right. I mean, look, you used all the tools that you have available to you to try to help your client. That’s what we all do as lawyers. And so if you’ve got legislative history that helps you… I’m not saying leave it out of the brief altogether, but just understand…know your audience and know that if you’re in front of the Georgia Supreme Court, that, sort of, legislative history is probably not going to carry much weight. And so you might want to focus your arguments on something else and just stick that in a footnote.

Scott: Right. Yeah. It’ll make for not a very fun world argument if you’re going to start talking about legislative history in the Georgia Supreme Court. You might have a rough go of it for sure. So I would recommend anyone to read your opinion in Mobley. Mobley v. the State of Georgia is just a great example of this methodology being put to use in a case.

I think the Cook case that dealt with out-of-time appeals in Georgia is a case where that methodology is employed. If you wanted to expose people to or new to all this to opinions that are steeped in this, sort of, statutory interpretation, what are some opinions that you would recommend?

Justice Blackwell: Well, I think, you’re right about Cook and Mobley. I might also point folks in Georgia to the Supreme Court’s opinion in Deal v. Coleman. I would certainly look at Justice Peterson’s opinion in Elliott v. State.

Scott: The DUI case.

Justice Blackwell: The DUI case about the privilege against self-incrimination and your right to refuse a breath test in the DUI context. I mean, look, there are a whole bunch of opinions, and I don’t know sitting here today that I can recall them all offhand, but those are certainly some I would start with.

Scott: And if you were going to recommend lawyers or briefs or arguments to potentially watch to see practitioners using this methodology as an advocate, do you generally…? I mean, you may not know really specifically but maybe what direction to point people to.

Justice Blackwell: Yeah. I mean, I think, if you went back and read some of the briefs and watched some of the arguments in some of these cases. I seem to recall, and this is before my time on the court, but the Nestlehutt decision, which struck down the cap on non-economic damages under the Tort Reform Act in Georgia. Nestlehutt predated me on the court.

I was not there when Nestlehutt was decided, but my recollection is that there may have been some fairly good briefing in that case on the original understanding of the right to trial by jury in the civil context in Georgia under the state constitution. There may have been some very good brief…very good, kind of, originalist style briefing on that issue in that particular case.

But I would look for cases that end up being decided by the court on, kind of, originalist and textualist grounds and then go back and look at some of the briefing. Like I said, in some of these cases, that, sort of, analysis was very well briefed by the practitioners. In other instances, it wasn’t so well briefed by the lawyers in the case, and it was work the court did on its own.

Scott: Or work that an amicus…maybe amicus did or something like that. And, I think, we, sort of, touched on this, but if someone doesn’t have a big budget for research, in other words, the client just can’t afford to pay, you know, me to go and dig around in a law library, would your general recommendation be to have those texts at hand that you talked about earlier? Is there something else that we can, kind of, do on less than a great budget to do this, sort of, analysis?

Justice Blackwell: Yeah. I mean, I think, having some, kind of, fundamental texts around and available to you. I mean, if you don’t have time, for instance, if it’s very important what the common-law understanding of a particular rule was because this is the meaning of a statute that may or may not change the common law, if you don’t have the resources to go do a full-blown exploration of the English in Early American Case Law, just having Blackstone’s commentaries on the shelf that you can refer to. I think Restatements of Law can be very helpful in getting a sense of what, kind of, background American Law was. So, if you practice a lot in the area of torts, being able to refer to, you know, the Second Restatement of Torts can give you a very good understanding of, kind of, what the general understanding of the background law was in American Law, generally.

You know, Bryan Garner, in addition to the “Reading Law” treatise that he did with Justice Scalia, has also done a couple of outstanding dictionaries that are more attuned to legal usage. So, a lot of lawyers have “Black’s Law Dictionary,” which, I think, is very helpful, but Bryan Garner’s “Dictionary of Modern Legal Usage” and his “Dictionary of Modern American Usage,” I think, are very helpful.

Scott: Ah. Well, very good. Well, listen, I really appreciate you giving me the time, and for those who listen, I know this will be very helpful. It was certainly helpful to me, and it, kind of, changed my approach to brief writing. So I really appreciate you coming on and, kind of, walking us through this stuff.

Justice Blackwell: Happy to do it. It’s a really interesting area, and it’s always a privilege and a lot of fun talking to you, Scott.

Scott: I appreciate it so much. Take care.

Justice Blackwell: You too.

Scott: Thanks for listening to “The Advocate’s Key.” For more information and content like this, including a transcript of this episode, be sure to visit scottkeylaw.com. And please rate, review, and follow this show wherever you get your audio content.

 

 

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