Monday, June 15, 2020

Textualism's Redeemers

By Dale Carpenter - June 15, 2020 at 09:30PM

Say what you will about the Supreme Court's decision today in Bostock v. Clayton County, concluding that forbidden "sex" discrimination encompasses firing someone for being gay or transgender, but on its face it is not the least bit sentimental about the almost 10 million LGBT workers in the country. There is no talk here of transcendence.  There is no waxing about dignity. There is no citation to evidence of the extent or harm of employment discrimination based on sexual orientation or gender identity. There is no homage to the struggles of gay or trans people over the decades or to society's evolving consensus. Two of the three plaintiffs are dead, yet Justice Gorsuch's decision reads as if he were parsing the terms of their wills.

There is no poetry, only prose.  It's refreshingly clear prose, too.

An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids. . . . When the express terms of a statute give us one answer and extratextual considerations suggest another, it's no contest. Only the written word is the law, and all persons are entitled to its benefit.

LGBT-equality advocates have long been skeptical of textualist arguments as mere covers for gay or trans exceptions to supposedly neutral legal analysis. A lot of these advocates expected that some combination of consequentialist concerns about purported transgender transgressions in bathrooms, religious objections, and libertarian grousing would drive them into a textualist dead-end. Now textualism will have new adherents across a broad swath of federal law.  (See Justice Alito's 15-page Appendix C listing federal statutes forbidding sex discrimination. It's a to-do list for Lambda Legal. The Court was careful about the "firing" issue today, so whether Bostock will actually be applied so broadly remains to be seen.) It has been redeemed in their eyes, at least today. It restores faith in text as law.

Textualism, at least as practiced by the Court, may also have some strange new skeptics. Just as a few esteemed scholars have begun to fault originalism for producing insufficiently socially conservative policy results, so there will be defectors from textualism's newly enlightened empire.

There is certainly room for debate among textualists about the right methodological considerations in Bostock and about where these considerations should lead. (Ilya has a close discussion of the textualist argument among the Justices here.) For years, I was not fully persuaded by the textualist case for gay and trans protection in Title VII. It's one reason I did not take a position in the litigation.

Many fine briefs on the plaintiffs' side made textualist arguments, as did those supporting the employers. The one that finally persuaded me, however, was the amicus brief by Bill Eskridge and Andy Koppelman. I saw no citation to it (except in the dissenting Justice Alito's footnote 11), but I suspect that brief was influential today.

There is an additional debate to be conducted among textualists about what we are supposed to be doing when we read legal texts. In the words of one dissenting commentator on this blog: "Textualism is not an interpretive theory. It is just a method of originalism." Really? The inverse seems to be closer to the reasoning of two leading conservatives now on the Court, at least when it comes to statutory interpretation: Originalism is not an interpretive theory. It is just a method of textualism.  That debate is now teed up.

At the same time, it's hard to escape the conclusion that there was more than clinical textualism behind this decision. The relevant text of Title VII has not changed in 56 years, and for most of that time lower courts uniformly read the text as not including protection for gay or transgender employees. But the existence of an LGBT-equality movement shifted the range of believable textualist arguments. The only paean to that movement came from the dissenting textualist, Justice Kavanaugh:

Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today's result.

The LGBT movement generated gales of social and political change that also lifted a judicial veil, allowing textualists to see what was right in front of them. "This elephant has never hidden in a mouse hole," Justice Gorsuch writes, "it has been standing before us all along."

 


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