The Wisconsin Supreme Court adopted textualism in State ex rel. Kalal v. Circuit Court of Dane County and, in doing so, promised an objective, text-focused approach to statutory interpretation. Yet, under this framework, the court has remained deeply divided, frequently splitting 4–3 along ideological lines—even as justices claim fidelity to textualist principles. This Comment examines how the court’s reliance on malleable canons of construction, such as expressio unius and the surplusage canon, has enabled policy-driven outcomes under the guise of textualist analysis through a decontextualization process.
However, since the court’s ideological shift to a liberal majority in 2023, the justices have adopted an “eyes-open” approach to textualism, restraining the decontextualizing canons and prioritizing textual coherence over selective canon application. Through an analysis of key cases, including James v. Heinrich and Sojenhomer LLC v. Village of Egg Harbor, this Comment argues that the liberal majority’s refined textualism mitigates the risk of judicial activism by requiring clearer triggers and stoppers for contested canons. The new majority has gone so far as to hint that Kalal may be on its last legs, though still adhering to a predominantly text-centered methodology.
Ultimately, the Comment proposes legislative and judicial reforms to codify guardrails around interpretive canons in order to ensure that textualism in Wisconsin fulfills its promise of objectivity, rather than serving as a vehicle for ideological outcomes. With Kalal under threat, this Comment suggests frameworks for refining Wisconsin’s textualist approach. The recent 2025 election, which cemented the liberal majority, presents a critical juncture: Wisconsin’s courts can embrace a more disciplined textualist methodology or revert to the fractured, policy-laden interpretations of the past.
