Discretion in Disguise: The Myth of Constraint in Modern Appellate Interpretation

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Appellate courts insist that they interpret the law rather than create it themselves. This distinction is foundational to our government: Judges apply rules, instead of making them. Yet, anyone who has read one of the seemingly ever-increasingly contentious appellate opinions being released day after day understands that this line is not clear. Hard cases don’t announce their answers in a grand gesture, and statutory or constitutional language rarely resolves without judgment. The more difficult inquiry is where judicial discretion resides–and how visible it really is.

Modern-day interpretive methods (textualism and originalism) claim to solve the aforementioned problem. Through anchoring the decisions of the judiciary in the fixed meaning of texts, both approaches promise constraint. Judges, within this view, are not policymakers; they are faithful agents of already enacted law. But this promise is vastly overstated. Textualism and originalism do not eliminate judicial discretion; they simply relocate it. 

The idea that courts merely “interpret” law has been more of an aspiration than reality for the majority of our country’s judicial history. Legal texts are indeterminate. Words carry many meanings, not even including the way context shifts the implication of specific word choice that often leads to statutes failing to anticipate scenarios in which they are applied. Even precedent, which often stands as the ultimate constraint, leaves a wide hole for interpretation: judges deciding how broadly or narrowly to read the prior holdings and what distinctions get to matter. In this sense, discretion is not a flaw in adjudication in the U.S., but more so a feature of it. What matters, instead, is how open those choices are to scrutiny and critique.

Textualism and originalism emerged as a response to concerns about judicial overreach. Championed by figures such as the late Justice Antonin Scalia, textualism directs courts to focus on the ordinary meaning of the text of said statute at the time of enactment, rejecting the legislative history or perceived purpose. Originalism, in a similar vein, tries to ground constitutional interpretation in the original public meaning of the document. 

Both approaches share a core claim: Through the tying of interpretation to fixed referents, they limit judicial discretion and prevent courts from substituting their own policy views for those of the legislature. This claim is intuitively appealing. If judges simply apply what the law says, instead of what they think it should say, the scope for policymaking shrinks. This intuition rests on the fact that meaning is stable without significant judicial input. In practice, this assumption doesn’t hold. 

Textualism’s reliance on “ordinary meaning” appears to be objective, but it is anything but mechanical. Judges must choose what dictionaries to consult, which definitions they’ll prioritize, and how to resolve competing usages. They must also decide the level of generality to apply: Is a statutory term read broadly, capturing all unforeseen applications, or narrowly, limited to specific cases? These overall are not neutral choices. They shape outcomes. What appears as the discovery of meaning is often the construction of it—construction mediated by judicial judgment.

Interpretation begins with how the question is framed. How a court frames the issue can determine the result before analysis even starts. A statute regulating “vehicles” in a park may or may not apply to electric scooters, depending on whether or not the judge frames the questions as a matter of literal inclusion or functional purpose (a famous argument discussed in H.L.A. Hart’s The Concept of Law). Textualism tries to avoid purposive reading, and yet question-framing inevitably brings it into the matter. Deciding what counts as the relevant text, or how abstractly to define a term, requires judgment that cannot be derived from text by itself. 

Originalism relocates discretion into the historical context. Determining original public meaning requires selecting sources, weighing their credibility, and resolving conflicts amongst them. Historical evidence is often contradictory, and reasonable interpreters often reach different conclusions from the same information. For example, in District of Columbia v. Heller, competing historical accounts of the phrase “bear arms” supported both an individual-rights and a militia-centered understanding. The outcome of the case, in turn, turned on which sources the court privileged over others. The result is not constraint, but rather contestation. Critics such as Justice Stephen Breyer and Judge Richard Posner have argued that this approach effectively transforms judges into historians, requiring methodological choices regarding sources and context that are neither mechanical nor transparent. The authority of history thus obscures the interpretive work required to produce it.

Recent Supreme Court decisions more broadly illustrate this dynamic. In Bostock v. Clayton County, the Court applied a textualist analysis to conclude that discrimination “because of sex” includes discrimination based on sexual orientation and gender identity. The majority then framed its reasoning as an ever straightforward application of ordinary meaning, yet the decision turned on contestable choices about how to parse statutory language. 

Similarly, in District of Columbia v. Heller, the court relied on originalist reasoning to recognize an individual right to bear arms. The opinion engaged extensively with historical sources, but the outcome ultimately depended on which sources were emphasized and how conflicting evidence was resolved. In both cases, interpretive methodology did not eliminate discretion. It structured and, to an extent, concealed it.

None of this article is to suggest that textualism or originalism are without value. These interpretive theories have a place in our judicial system by anchoring interpretation in text and history, which can discipline judicial reasoning and ultimately promote consistency. But their benefits should not be overstated. The central problem is not that judges fail to exercise discretion, but rather that modern interpretive methods obscure when and how they do so.

A more honest account of appellate judging would acknowledge discretion as inevitable and focus instead on making it transparent and contestable. This may involve greater candor about interpretive choices, clear justifications for methodological decisions, and a willingness to engage with the policy implications of legal rulings.

Hayden Hradek is a freshman at Brown University from the Ozarks of southwest Missouri, studying International and Public Affairs alongside Social Analysis and Research. He is a staff writer for the Brown Undergraduate Law Review and can be contacted at hayden_hradek@brown.edu.

Daniel Shin is a junior at Brown University studying Economics & International and Public Affairs. He is a Blog Editor for the Brown Undergraduate Law Review, and can be reached at sangjun_shin@brown.edu.

Emily Walsh is a sophomore at Brown University from Minneapolis, studying Philosophy and International and Public Affairs. She is an Associate Editor for the Brown University Undergraduate Law Review and can be reached at emily_m_walsh@brown.edu.