In the
United States, there are different methods to perform judicial interpretation: •
Balancing happens when judges weigh one set of interests or rights against an opposing set, typically used to make rulings in
First Amendment cases. For example, cases involving
freedom of speech sometimes require justices to make a distinction between legally permissible speech and speech that can be restricted or banned for, say, reasons of safety, and the task then is for justices to balance these conflicting claims. The balancing approach was criticized by Supreme Court justice
Felix Frankfurter who argued that the Constitution gives no guidance about how to weigh or measure divergent interests. • Doctrinalism considers how various parts of the Constitution have been "shaped by the Court's own jurisprudence", according to Finn. •
Moral Reasoning, commonly referred to as the "ethos of the law", argues that "certain moral concepts or ideals underlie some terms in the text of the Constitution" and that the Court should account for these underlying concepts throughout their interpretation on a case. •
Prudentialism discourages judges from setting broad rules for possible future cases, and advises courts to play a limited role. For example, Justice
Hugo Black argued that the First Amendment's wording in reference to certain civil rights that
Congress shall make no law should mean exactly that:
no law,
no exceptions. • Legal structuralism is a way judges use by searching for the meaning of a particular constitutional principle only by "reading it against the larger constitutional document or context," according to Finn. •
Textualism primarily interprets the
law based on the ordinary meaning of the legal text. A good example of multiple approaches to textualism comes in
Bostock v. Clayton County where both the majority opinion and dissents adopted a textualist approach; the only difference was "what flavor of textualism the Supreme Court should employ." The majority opinion, written by Justice
Neil Gorsuch, utilizes a very narrow and literal textualist interpretation, which is essential to the ruling in
Bostock and the precedent it set. The dissenters (Justice Brett Kavanaugh, Justice
Samuel Alito, and Justice Clarence Thomas), claim the correct textualist interpretation to apply is ordinary meaning and not the literal meaning used by the majority opinion.
Legal realists and other skeptics would point to this as an example of the contradictions in claiming one judge's subjective interpretation will somehow lead to a more objective judicial analysis than methods (e.g. pragmatism) used by "nontextualists." ==Frequently used vocabulary==