This seems like an unfair characterization. Whether or not judicial review formally exists[1], in any system where the courts are functionally independent of the legislature it stands to reason that having the lastsay in a matter puts one in a rather consequential position that's vulnerable to easy criticism.
That's why people who think Textualism is a check on the judicial power are mistaken, IMO. Notwithstanding that the first and usually only step in traditional statutory interpretation is to apply the text of a statute according to its facial meaning, the underlying principle is to give effect to the intention of the legislature or the purpose of the law. (Most scholars will tell you those--intention vs purpose--are distinct philosophies, but I personally think it's a distinction without a difference.) Textualism doesn't care about intention or purpose and will gladly apply an interpretation that would have seemed absurd to anyone who drafted or voted for the law before the implications (i.e. the insanity of the world) laid bare the ambiguity. And because no self-professed textualist applies this method with perfect consistency (including and, especially IMO, Scalia), expressions of partisan bias can be even greater as the fiction of textualism provides an effective cover, both for the judge and his critics; discretion is disguised because nobody cares when you apply a meaning with which everybody agrees--or at least which seems reasonably consonant with the application of intent or purpose--yet which is nonetheless at odds with the text on its face. Recognizing one's own inconsistencies in this regard, or proving the inconsistencies of others, is far more work than identifying and calling out specific instances of obvious partisanship--especially when the latter are admitted, like during the Warren Court years.
[1] In Western legal philosophy it's usually considered a violation of separation of powers and of justice more generally for a legislature to directly overturn the result of a particular case, as distinguished from changing the law for future cases. Because the buck stops with the courts, of course they get all the flak for disagreeable decisions, and it's convenient to attribute subversive or even malicious motivations. This dynamic is exaggerated in systems with formal stare decisis because the courts effectively only get one bite at the apple. Without stare decisis courts can apply the law differently in different cases, often in response to partisan or popular reactions, which while lowering the stakes and defusing tension has its own obvious problems regarding consistency and discretion. Indeed, even in civil law countries I think there's a direct correlation between the maturity and strength of the judiciary and de facto application of stare decisis--pretense of a lack of discretion. In terms of obeyance to precedent, French or Italian courts are far more consistent than, e.g., Russian courts. Discretion invites corruption. It's no coincidence you never hear stories about how a Russian judicial opinion substantially frustrated the government or legislature. Likewise for Chinese courts, though in the commercial sphere they're far more independent than in Russia, AFAIU. Similar criticisms have been leveled at Japanese courts--e.g. the Supreme Court of Japan has only once or twice overturned a law even though it nominally has the same power as in the U.S. and there's a strong academic consensus it should have done so in many more instances. Though, the peculiarity of Japanese culture makes it difficult to ascribe it to corruption.
> Textualism doesn't care about intention or purpose and will gladly apply an interpretation that would have seemed absurd to anyone who drafted or voted for the law before the implications (e.g. the insanity of the world) laid bare the ambiguity.
This is probably why originalism is more what one hears about these days. One could argue that it's just textualism with the serial numbers filed off in practice, but in theory at least an originalist would reject an absurd interpretation that was obviously counter to original legislative intent. But my cynical side agrees that textualism or originalism is just another tortuous path to reach conclusions that have already been decided on before hand.
> In Western legal philosophy it's usually considered a violation of separation of powers and of justice more generally for a legislature to directly overturn the result of a particular case, as distinguished from changing the law for future cases.
There are various laws passed that granted veteran's benefits to specific individuals. There's also the Palm Sunday Compromise[1]. The latter was certainly politically controversial, and raised criticism along the lines you mention, but it was within Congress's power.
> This is probably why originalism is more what one hears about these days.
I agree. I think most conservatives tend to identify more with self-styled Originalist scholarship and perspectives. But Scalia made a name for himself academically by coining Original Meaning, which is a twist on strict textualism in the context of constitutional interpretation intended to mitigate the harmful consequences--a legislature can't resolve textual ambiguities in constitutional text as easily as it can statutes. Scalia and others spilled much ink distinguishing Originalism from Original Meaning. At least in terms of scholarship Scalia was consistent that way.
Regarding the Terry Schiavo case (which is a good point, BTW): that the Congress is empowered to do something doesn't mean using that power isn't a violation of general principles of the law. As the Trump years have proved, and which bitter partisanship was already making clear, much of the law as we understand it is normative even in the U.S. And while I think Congress' intervention in the Schiavo case was wrong on almost every level, it's also true that violations of general principles can be used to prevent an injustice. There's often a tension between equity (i.e. fairness) as it regards particular individuals, and the maintenance of general rules and principles. Justice can be a matter of perspective and priorities. That's one reason why courts can and should jealously guard certain discretions (see, e.g., the Michael Flynn, Judge Sullivan Rule 48(a) debate) and independent powers. (EDIT: I realized after the fact that by referencing the Flynn/Sullivan dispute it's ambiguous which discretion I'm referring to--the court's or the government's--but that ambiguity kinda drives home the point regarding the importance and role of discretion. For the record I support Sullivan's position, but it's a very technical debate.) Circling back to Originalism: resolving that tension is one reason behind the emergence and support of so-called Substantive Due Process, which can be construed as the court giving effect to a right (newly discovered or simply never before honored, depending on your perspective) by refusing to give effect to the government's nominal power to violate it--i.e. by procedurally blocking the government. Which is why it's unfair to characterize Substantive Due Process as an oxymoron, at least as it was originally developed by abolitionists at the turn of the 19th century. (Since then courts have been more aggressive at using their equitable powers, which means more than procedurally blocking government actions by, e.g., refusing to hear a prosecution for sodomy or a replevin action regarding an escaped slave, courts affirmatively give effect to a right by enjoining government actions that aren't gated behind a judicial process.)
> that the Congress is empowered to do something doesn't mean using that power isn't a violation of general principles of the law
"Lack of elegance" or "violation of social norms" or similar would (IMO) be a better wording. I see the fact that a united congress is all powerful (can freely amend the constitution, remake the government, etc) as being perfectly in line with (even essential to) the general principles of US law - that the will of the people should rule.
That's why people who think Textualism is a check on the judicial power are mistaken, IMO. Notwithstanding that the first and usually only step in traditional statutory interpretation is to apply the text of a statute according to its facial meaning, the underlying principle is to give effect to the intention of the legislature or the purpose of the law. (Most scholars will tell you those--intention vs purpose--are distinct philosophies, but I personally think it's a distinction without a difference.) Textualism doesn't care about intention or purpose and will gladly apply an interpretation that would have seemed absurd to anyone who drafted or voted for the law before the implications (i.e. the insanity of the world) laid bare the ambiguity. And because no self-professed textualist applies this method with perfect consistency (including and, especially IMO, Scalia), expressions of partisan bias can be even greater as the fiction of textualism provides an effective cover, both for the judge and his critics; discretion is disguised because nobody cares when you apply a meaning with which everybody agrees--or at least which seems reasonably consonant with the application of intent or purpose--yet which is nonetheless at odds with the text on its face. Recognizing one's own inconsistencies in this regard, or proving the inconsistencies of others, is far more work than identifying and calling out specific instances of obvious partisanship--especially when the latter are admitted, like during the Warren Court years.
[1] In Western legal philosophy it's usually considered a violation of separation of powers and of justice more generally for a legislature to directly overturn the result of a particular case, as distinguished from changing the law for future cases. Because the buck stops with the courts, of course they get all the flak for disagreeable decisions, and it's convenient to attribute subversive or even malicious motivations. This dynamic is exaggerated in systems with formal stare decisis because the courts effectively only get one bite at the apple. Without stare decisis courts can apply the law differently in different cases, often in response to partisan or popular reactions, which while lowering the stakes and defusing tension has its own obvious problems regarding consistency and discretion. Indeed, even in civil law countries I think there's a direct correlation between the maturity and strength of the judiciary and de facto application of stare decisis--pretense of a lack of discretion. In terms of obeyance to precedent, French or Italian courts are far more consistent than, e.g., Russian courts. Discretion invites corruption. It's no coincidence you never hear stories about how a Russian judicial opinion substantially frustrated the government or legislature. Likewise for Chinese courts, though in the commercial sphere they're far more independent than in Russia, AFAIU. Similar criticisms have been leveled at Japanese courts--e.g. the Supreme Court of Japan has only once or twice overturned a law even though it nominally has the same power as in the U.S. and there's a strong academic consensus it should have done so in many more instances. Though, the peculiarity of Japanese culture makes it difficult to ascribe it to corruption.