Before I try to tease out where I think this approach goes seriously wrong, I should note what it gets right: Jurisprudence does, absolutely, require philosophy. It requires a philosophy of law, of citizenship, of interpretation. You can’t just read the text and slap it onto whatever situation wanders into your courtroom; you have to stretch, to come up with ad hoc reunderstandings and reapplications. And Balkin is absolutely right that this is especially true of cases that come before the Supreme Court–they often come before the highest court precisely because the application of text to situation is non-obvious–they’re tough cases. That’s one reason the term “textualism” seems to me to be something of a misnomer (I prefer “judicial humility in the face of text and legislature,” though I can see why people don’t rattle that phrase out at every opportunity!). Even my revision, “RTFM!” (“Read The [Effing] Manual!”), is sadly inattentive to the ways judges have to develop the law as they apply it. Here’s a tiny sampling of doctrines that are, ahem, extratextual: the public figure doctrine, the political questions doctrine, “strict scrutiny.” There are scads and scads more that I would know about if I’d ever, you know, studied law.

And you can’t just say, “OK, that kind of judge-made law is unavoidable, but it should be avoided wherever possible.” When is it avoidable? How can you tell? When it’s not avoidable, what are the guidelines that will help judges extrapolate from the text? The real solution to the making-up-doctrines-because-you-have-to problem is education in prudence–encouraging and helping judges to form an ethos that can rightly extrapolate doctrines when needed under certain limited circumstances–but even in order to form characters you need a philosophical understanding of when extrapolations are “necessary” and how we should go about extrapolating.

And I can’t answer those questions. I don’t have the necessary wisdom and expertise. So I will try to set limits the other way around: not by saying, “Extrapolate like this!” but by saying, “Do not extrapolate like that.” So, a couple scattered thoughts: Doctrines like the political-questions one are generally acceptable to the public because a) we can see why you have to come up with something in order to handle a genuinely knotty situation; b) it doesn’t “look like” the business of the legislatures–there’s no sense that the courts seized from the legislative branch the right or opportunity to define political questions; c) it’s a general rule that can come back to bite the people who designed it, not a “this ticket good for one ride only!” proviso like Bush v. Gore; and d) there’s no movement to vote on it or otherwise take it out of the court’s hands. I know these are seriously lightly-sketched thoughts, but they do distinguish lots of judicial doctrine-making from stuff like Roe and Bush.