Fake Textualism

Textualism centers on the text. The text is the law, not the supposed intent of the legislators or the hypothesized purpose behind their actions. Textualism seeks to give the text a “fair reading” – not an overly reductionist one, not an overly simplistic one, but a fair one.

The most famous proponent of textualism is the late Justice Antonin Scalia, a giant of the legal profession. One of the most powerful parts of Scalia’s legacy is his book Reading Law: The Interpretation of Legal Texts, in which he lays out the principles of legal interpretation. He also provides a staunch defense of textualism as the “most commonsensical interpretive principle.”

Justice Scalia also happens to be Justice Neil Gorsuch’s predecessor at the Supreme Court, and the two were good friends. Justice Gorsuch’s book, A Republic, If You Can Keep It, is replete with praise for Scalia. There are even photos of them fly fishing together. Gorsuch confidently casts himself as the new standard bearer of textualism. One emerges from Gorsuch’s book well aware of both his admiration for Scalia and his whole-hearted belief in the merits of textualism.

Or so it seemed, until June 15, 2020. On that day, the Supreme Court decided in Bostock v. Clayton County that Title VII’s prohibition of discrimination on the basis of sex includes sexual orientation and gender identity. Justice Gorsuch wrote the majority opinion. In addition to the myriad legal, social, and biological problems with this decision, Gorsuch’s Bostock opinion is confounding because of the confidence with which it claims to be applying textualism while simultaneously inventing a new law out of thin air. Gorsuch purports to be applying the textualist theory of his mentor and predecessor Justice Scalia, but he ends up dishonoring the legacy of the great jurist. As Justice Samuel Alito memorably put it: “The Court’s opinion . . . . sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated – the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.” In fact, Gorsuch’s Bostock opinion violates all of the core principles in Reading Law, Scalia’s magnum opus and one of the premiere authorities on textualism. The following paragraphs describe each of these violations.

  1. The Supremacy of Text Canon: the words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.

This violation is one of the clearest. As Justice Kavanaugh’s concurrence shows, Gorsuch parses the statutory language to an incoherent degree, ignores a plethora of contextual factors, and ultimately treats the text as irrelevant rather than paramount. Gorsuch considered all of the crucial words in the case – “sex,” “because of,” “discrimination,” and so on – in isolation. And he based his interpretations of those words on cases that dealt with completely unrelated portions of Title VII. As a result, Gorsuch both (1) gets the original meaning wrong and (2) parses the text to such small, hyperliteral portions that he loses the big picture. This is the exact opposite of Scalia’s Supremacy of Text Canon, which reminds the interpreter to take the context into account.

The reality is that Title VII wasn’t concerned with the just the differential treatment of men and women. It was concerned with differential treatment of men and women because of bias based on that person’s sex. And all of the historical evidence supports this meaning. Title VII itself states that sex must be a “motivating factor” in the decision, further supporting the fact that its true focus was differential treatment because of sex-based bias. Gorsuch, however, didn’t even address that phrase.

2. The Ordinary Meaning Canon: words are to be understood in their ordinary, everyday meanings.

Scalia called this principle “the most fundamental semantic rule of interpretation,” but Gorsuch’s Bostock opinion relegated it to an afterthought. Gorsuch zeroed in on specialized meanings and obscured the full meaning of Title VII. For instance, he discarded the ordinary meaning of “because of” and chose to use the specialized legal definition (the “but-for” causation test). Why the sudden switch from ordinary meaning to specialized meaning? Is there something special about “because of” that warrants unique analysis? If so, why didn’t Gorsuch tell us?

3. The Fixed Meaning Canon: words must be given the meaning they had when the text was adopted.

This canon describes the interpretive theory known as Originalism, which seeks to find the original public meaning of the text. Read the sentence, then give it the meaning that a reasonable person at the time it was written would have given it. It’s how all language works. Otherwise, what’s the point of writing it down?

Gorsuch spends entire chapters of his book defending Originalism, but in Bostock he wrote into law an entirely new category that was unknown to Congress in 1964. As Justice Alito’s dissent demonstrated, bills adding sexual orientation to the Civil Rights Act of 1964 have repeatedly failed to pass both houses of Congress for decades. There is simply no evidence that the framers of the Civil Rights Act thought the word “sex” also included gender identity or transgender status.

4. The Omitted Case Canon: nothing is to be added to what the text states or reasonably implies. That is, a matter not covered is to be treated as not covered.

Within the first paragraph of his opinion, Gorsuch had already concluded that the text included something other than what it states. A matter not covered is to be treated as not covered – unless he wants it to be covered. But Scalia was clear about this, too: “Judicial amendment flatly contradicts self-governance.” Gorsuch’s book would seem to suggest that he agrees with Scalia, but Bostock clearly shows otherwise.

5. The false notion that when a situation is not quite covered by a statute, the court should reconstruct what the legislature would have done had it confronted the issue.

Gorsuch appears to think that it is his job to do what the legislature should have done back in 1964, had they seen the world through his eyes. In his words: “Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result . . . . [b]ut the limits of the drafters’ imagination supply no reason to ignore the law’s demands.” But it’s not about what the legislature should have done; it’s about what the legislature did. And if that isn’t the question, why bother having a legislature?

6. The false notion that words should be strictly construed.

As Scalia points out, excessive literalness can “strangle meaning.” That is why a fair reading of the text is so important. A fair reading of the text in its full context “does not limit one to the hyperliteral meaning of each word in the text.” Scalia quotes the famous Judge Learned Hand: “[A] sterile literalism . . . loses sight of the forest for the trees.”

In Bostock, however, Gorsuch got stuck looking at pine needles. He considered all of the key phrases and words – “sex,” “because of,” “discrimination,” and so on – in isolation. Not once did he consider the sentence as a whole. The result was that Gorsuch never grasped the full original meaning (of which he is a purported supporter) of the sentence, which was not mere differential treatment of men and women. It was differential treatment of men and women because of bias based on their sex. Gorsuch missed the forest because he was using a magnifying glass.

* * * * *

Justice Gorsuch has cast a pall on his own legal credibility by achieving blatantly non-textualist results while claiming textualist protection. Bostock is the opposite of textualism. Gorsuch has both contradicted himself and dishonored the predecessor he claims to revere. So much for being the standard bearer of textualism.  

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