The Limits of Textualism In the US Supreme Court's Bostock Decision

I'm becoming a fan of Pulitzer Prize winner Linda Greenhouse, a contributing opinion writer for the New York Times. The June 15 Bostock Opinion written by Justice Neil Gorsuch shocked me for many reasons she touches on in the article below, which I'm pulling from its paywall and posting below. I agree especially with her assessment that Justice Gorsuch was more interested in self-aggrandizement than ideology of left or right; that "textualism" or "originalism" as a method of statutory construction is a sad diminishment of real judging and that the method allows for almost any decision to be made in any case.

Neil Gorsuch decided the three associated cases, involving matters of huge moment for a large percentage of the American population, based on parsing the meaning of "because of sex" in the language of Title VII. He decided that phrase means "because of sex or anything necessarily related to sex", including the will o' the wisp called gender, which feminists have with enormous difficulty showed repeatedly over the decades to be an arbitrary set of social conventions constituting one major source of sex discrimination.

A number of commentators have spoken with regret about the fact that though Gorsuch's opinion brings LGBTQI, etc., into the federal protective statute for the first time, it does so peculiarly gracelessly, without a human word anywhere. The opinion is cold and calculated and its lack of interest in the social issue, which a Legislature would be obliged to consider, is glaring. With no interest in the purpose of the statute or its consequences, he has ignored the social context entirely, leaving us with a closed and airless decision that will take decades to work out in real life.

The paradox of including gender, a structural source of sex discrimination, as a protected variety of sex discrimination, isn't fully discussed in this article, because Greenhouse would like to continue publishing her excellent work. There were certainly ways to include it. To do so properly would have required first of all carefully defining it, a project that is entirely absent in Bostock.

Courts, unlike legislatures such as the Congress, can't get away with introducing crucial terms into law without defining them. The 1964 Congress could adopt a society-changing statute like the Civil Rights Act that didn't define "sex", in reliance on the courts taking on the interpretation job; the Gorsuch opinion has no business failing to define either "sex" or "transgender" status when the two terms are so contentious at this time.

A good opinion would also have included a discussion of whether transgenderism and sexual orientation should be covered without locating these grounds of discrimination in the sex category.

All Greenwood can do is point out that the case involved political issues that are normally reserved to the Legislature, and that in the absence of governing by our US Legislature, the Supreme Court has taken over our law-making. Unfortunately, this has occurred in the years post-Antonin Scalia, when conservative justices like Gorsuch rule the Court and announce they follow the current pusillanimous, mechanical method of statutory construction Scalia laid down. Worse, they follow this method very, very badly.

If you're going to follow Scalia, I say read the books Scalia wrote on statutory construction. Justice Kavanaugh seems to have done that -- his opinion comes down to the simple, solid "sex means sex, not gender". But if plain meaning isn't textualism, then what is? Gorsuch didn't find the plain meaning of the word "sex" persuasive and instead took a leap of faith (he called it logic) he won't even admit to, in finding that transgender status is necessarily based on biological sex.

Justice Scalia was very interested in the use of legal maxims, those old rules from English common law which become most important when there is a phrase to be interpreted. One of the oldest and most effective in cutting through the issue of the scope of a "category" word in a statute that could include many things, and determining whether those other things should be included, reads like this: the enumeration of one thing in the category excludes other possible things from the category (in Latin, "Expressio unius est exclusio alterius").

Title VII is structured as an enumeration of categories of people who may not be discriminated against. In separate subsections, there are prohibitions based on race and religion, and sex. The expressio unius maxim could have also been applied by Gorsuch to the Bostock case (also following Scalia's "textualism") and resolved clearly on that technical basis. Most simply, Gorsuch could have decided that in enumerating ONLY sex in a separate subsection, the statute has mentioned one thing and by implication excluded all other things. Sex means sex, narrowly construed. So the decision could as easily been for the employer in all three cases.

I point out this alternate textualist method of analysis to show that it is extremely poor judging to use "textualism" to decide matters like those in the Bostock/Harris case. Though Gorsuch's opinion gives LGBTQ people basic employment rights, and this is the right general outcome of the case, it is a shame that it does so by using an impoverished method. Results in future cases will be unpredictable with no anchoring in the social or legislative context. There is no guarantee that the next cases coming up, about whether people whose religious or conscientious beliefs lead them to discriminate against the very same groups that have just won protection here, will be decided against LGBTQ people. The weakness of Scalia's method is that it allows for any result.

As for women's rights to privacy and security, conflicting rights issues involving a huge class of people that demanded to be discussed and accommodated in this decision, they are ignored. Women are shut out of the discussion in Bostock/Harris as though the sex category wasn't adopted for their sake. The step-by-step exclusion of women's rights from sex category cases and decisions is a topic for another posting.

Greenwood's article below raises one point I disagree with (there are others, but I'll rest with this): she is pleased to see the attack on class litigation, as opposed to litigation by individuals, in the opinion. I'm alarmed by it. Whatever the conflicts of rights between the various categories or classes of people involved in Bostock, there's no way to settle them in future cases without using a class model. Gorsuch's insistence that Title VII cases must be brought by individuals as only individual rights are violated is dangerous and hostile to the purposes of US civil rights law.

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NYT Opinion

What Does ‘Sex’ Mean? The Supreme Court Answers

By Linda Greenhouse

Contributing Opinion Writer

"Monday’s momentous Supreme Court decision protecting L.G.B.T.Q. people against workplace discrimination was so big that it crashed the court’s computer system. For nearly half an hour, those of us at home, anxiously refreshing our browsers, knew that the decision had come down but could download only the first page of the headnote, the official summary: “Held: An employer who fires an individual merely for being gay or transgender violates Title VII.”

But who wrote the opinion? And what was the vote? Eventually, of course, the surprises were revealed: Justice Neil Gorsuch and 6 to 3.

In the few days since then, I’ve been pondering: What do people need to know about Bostock v. Clayton County beyond its bottom line? And where, in this mammoth set of opinions — a modest 33 pages for Justice Gorsuch but an indigestible 135 pages for the dissents — does the decision’s beating heart lie?

The legal academic blogs are full of vigorous debate over who, in this dispute over statutory meaning, was the more authentic “textualist”: Justice Gorsuch, who called his conclusion the “necessary consequence” of the “starkly broad” language Congress chose 56 years ago when it prohibited employment discrimination “because of sex”? Or Justice Samuel Alito, whose reasoning boils down to two sentences in his long opinion’s second paragraph:

“Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: ‘race, color, religion, sex and national origin,’” Justice Alito wrote. “Neither ‘sexual orientation’ nor ‘gender identity’ appears on that list.”

(Justice Clarence Thomas signed Justice Alito’s opinion. The other dissenter, Justice Brett Kavanaugh, oddly faulted Justice Gorsuch for giving the phrase “discrimination because of sex” too “literal” a meaning, as opposed to what Justice Kavanaugh deemed its “ordinary meaning” that happens, in his view, not to include gay or trans.)

I’ll leave the textualism debate to my academic colleagues. I want to talk about the sharply contrasting vantage points from which the majority and the dissent (and here I refer to Justice Alito, since Justice Kavanaugh’s opinion added nothing of moment) viewed the issue, whether from the past, present or future. These clashing perspectives, more than a debate over the canons of statutory interpretation, help explain the decision and may even help in understanding a court that defied most expectations with its decision and might do so again.

Justice Gorsuch anchored his opinion in the world of today; the past and the future are not the majority’s concerns. “These cases involve no more than the straightforward application of legal terms with plain and settled meanings,” he said. That those who wrote those terms into law might not have expected them to apply as the court was now applying them made no difference: The language they wrote is the language they wrote, and “the limits of the drafters’ imagination supply no reason to ignore the law’s demands.” As for the future, Justice Gorsuch said, “whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.”

Justice Alito’s dissenting opinion, by contrast, was all about the past, of which he appeared almost willfully ignorant, and the future, of which he seemed terrified. First, the past:

“Statutes consist of communications between members of a particular linguistic community, one that existed in a particular place and at a particular time, and these communications must therefore be interpreted as they were understood by that community at that time,” Justice Alito wrote. “In 1964, ordinary Americans reading the text of Title VII would not have dreamed that discrimination because of sex meant discrimination because of sexual orientation, much less gender identity.” He added that “these exotic understandings of sex discrimination would not have crossed their minds,” and he further observed that in 1964, homosexuality was regarded as a mental disorder and transgender was “a concept that was essentially unknown to the public at that time.”

My suggestion of willful ignorance stems from this passage in Justice Alito’s opinion:

“Title VII prohibits discrimination because of sex itself, not everything that is related to, based on, or defined with reference to, ‘sex.’ Many things are related to sex. Think of all the nouns other than ‘orientation’ that are commonly modified by the adjective ‘sexual.’ Some examples yielded by a quick computer search are ‘sexual harassment,’ ‘sexual assault,’ ‘sexual violence,’ ‘sexual intercourse,’ and ‘sexual content.’” Does the court really think that Title VII prohibits discrimination on all these grounds?”

Justice Alito’s computer evidently didn’t inform him that in 1986, 24 years after the passage of Title VII, the Supreme Court recognized sexual harassment as a form of sex discrimination. The case was Meritor Savings Bank v. Vinson. The opinion was by William Rehnquist, at the time an associate justice and the court’s most conservative member, and the vote was 9 to 0. Sexual harassment had not entered the lexicon until 1979, when a law professor, Catharine MacKinnon, published a pathbreaking book, “Sexual Harassment of Working Women.” Years of feminist activism followed in an effort to incorporate the concept into existing law.

In fact, the Supreme Court has consistently read Title VII generously to cover situations that were surely not on the screen of the statute’s sponsors. A unanimous opinion by Justice Sandra Day O’Connor in 1993 adopted a broad definition of a workplace atmosphere so hostile or abusive as to amount to sex discrimination. And in 1998, another unanimous opinion, this time by Justice Antonin Scalia, the patron saint of judicial textualism, held that Title VII covers sexual harassment when both perpetrator and victim are of the same sex.

Forced by the majority opinion’s highlighting of that precedent, Oncale v. Sundowner Offshore Services, to acknowledge its existence, Justice Alito dismissed it as “thoroughly unremarkable.” Given his omission of the Meritor Savings Bank precedent 23 pages earlier in his opinion, Justice Alito’s explanation for why the Oncale case proved nothing was remarkable indeed: that after all, the court had already established that sexual harassment was covered by Title VII.

So much for the past. And what of the future? The man is not lacking in imagination. Justice Alito offered a 10-page checklist of what to fear from the Bostock decision. Among them, bathrooms! Citing a brief filed by an organization called Defend My Privacy, he warned that “for women who have been victimized by sexual assault or abuse, the experience of seeing an unclothed person with the anatomy of a male in a confined and sensitive location such as a bathroom or locker room can cause serious psychological harm.” And then there is free speech! (“The court’s decision may also pressure employers to suppress any statements by employees expressing disapproval of same-sex relationships and sex reassignment procedures.”)

And of course, Justice Alito worried about its impact on freedom of religion, a subject that deeply engages the court in any event. Within the next few weeks, the court will decide two cases on the scope of the so-called ministerial exception, a judicially created concept that exempts churches and religious institutions from having to abide by federal anti-discrimination laws for some categories of employees. Which categories? Ministers, obviously, but football coaches at religious schools? Lay classroom teachers? Receptionists? That’s what the court will tell us shortly. Without doubt, this week’s decision heightens the significance of those imminent rulings, given the receptivity justices showed during oral arguments to very broad application of the exception. Based on last month’s arguments in the two cases, I don’t expect to be cheering the result.

But Monday’s decision is something to cheer, even if there prove to be holes in the web of legal protection that six justices have cast over a group of people who not very long ago were, to paraphrase the retired Justice Anthony Kennedy, strangers to the law. We are all made better off by the court’s insistence that Title VII protects individuals.

“Title VII liability is not limited to employers who, through the sum of all of their employment actions, treat the class of men differently than the class of women,” Justice Gorsuch wrote. “Instead, the law makes each instance of discriminating against an individual employee because of that individual’s sex an independent violation of Title VII.”

What does it mean to say that the Bostock decision is anchored in today’s world? More than 200 major employers told the justices in a brief they filed on behalf of the gay and transgender plaintiffs that a quiet revolution is taking place with the stamp of approval of the establishment of which they are a part. As the court was considering the case following last October’s argument, a gay man was running a credible campaign for a major party’s presidential nomination.

In the next few weeks, we will learn, among other things, whether the court will abide by its precedents on abortion. But a series of suprise decisions have dominated the past week.

On Monday, over the dissenting votes of Justices Thomas and Alito, the court refused to hear the Trump administration’s challenge to California’s “sanctuary city” policy, which protects immigrants in state detention from being turned over to federal officers. The court had the administration’s petition under active consideration since January before denying it without explanation.

And in other action on Monday, only Justices Thomas and Kavanaugh were left to complain when the court, to the surprise of nearly everyone, turned down 10 Second Amendment petitions that would have given what once looked like an eager majority a chance to further expand individual gun rights.

Then, on Thursday, the court blocked the Trump administration’s effort to end the Obama administration’s program that protects hundreds of thousands of young immigrants known as Dreamers from deportation. The 5 to 4 decision, with a majority opinion by Chief Justice Roberts, offered the White House a chance to justify the termination on firmer legal grounds. But at the same time, the chief justice appeared to doom such an effort to failure by stressing the need to take into account the “reliance interests” of the young people who have used the opportunity to deepen their roots in the only country they have known by finishing school, building families and contributing to the economy.

Random events, or straws in the wind — evidence that the justices have decided to do their part to cool the culture wars rather than inflame them? We’ll see soon enough.

Reading Justice Gorsuch’s Bostock opinion, I was thrown back to the summer of 2017, when I found myself in a social gathering of a half dozen fellow progressives and one prominent conservative lawyer with whom we were all friendly. It was a civil but increasingly pointed conversation as we pressed the lawyer, first gently and then more firmly, on whether he actually supported the Muslim travel ban and other actions of the Trump administration’s opening months that troubled the rest of us. He took the bait in good humor but finally, all but throwing up his hands, he cut the conversation off.

“Look,” he said. “We got Gorsuch.”

Yes, we did."