SCOTUSblog by Jonathan Skrmetti 6/15/2020
Justice Elena Kagan famously remarked, eulogizing her friend Justice Antonin Scalia, that “[w]e are all textualists now.†Bostock v. Clayton County puts to rest any doubt about that sentiment. Although the 6-3 decision prompted vigorous dissents, all nine justices adopt a purely textualist approach and disagree only about what flavor of textualism the Supreme Court should employ.
Scalia’s successor, Justice Neil Gorsuch, writing for the majority, erects a triumphal arch glorifying textualism in its narrowest literalist conception. Bostock embraces a rigorous textualism without regard to a statute’s context or history. While much commentary will no doubt focus on the social impact, legal ramifications and electoral effect of this decision, the court’s opinion maintains a pinpoint focus on interpretive methodology. Writing for an unusual coalition, Gorsuch seizes the opportunity to further his overarching agenda of reinforcing popular sovereignty through sharply delineated separation of powers (though as the dissents articulate in detail, interpreting a statute to mean something no member of Congress understood it to mean at the time of its passage seems an odd way to reinforce democratic accountability and the rule of law).
Bostock’s textualism represents perhaps the apotheosis of judicial minimalism in statutory interpretation: Open the code, read the statute, rule. Absent linguistic ambiguity or evidence that the meaning of terms in the statute have changed over time, statutory interpretation is purely a matter of parsing the statute and analyzing its semantics and grammar. Where statutory interpretation is concerned, per Bostock, a judge should effectively set aside his or her law school education and retreat to the lessons of high school English class.
Following this method, Bostock holds that any discrimination based on sexual orientation or gender identity is necessarily, at least in part, discrimination based on sex. If a man is attracted to men, reasons the court, he must be treated the same as a woman attracted to men, because any alternative would involve treating him differently because of his sex. This follows because Title VII is focused on individual discrimination and not on categorical conduct. An employer who fires both a man and a woman for being gay or transgender does not insulate itself from Title VII liability but rather doubles its exposure. The Bostock opinion reaches this result based solely on its analysis of the plain text of the statute and pointedly ignores any external sources of illumination.
The court’s narrow textual focus allows it to avoid substantial context that supports a different reading. Congress itself repeatedly demonstrated an understanding that a prohibition on discrimination on the basis of sex did not encompass discrimination on the basis of sexual orientation or gender identity. For example, Congress included sexual orientation and gender identity alongside sex in the enumeration of prohibited discriminatory motives found in the Matthew Shepard and James Byrd Hate Crimes Prevention Act. And in various iterations of the Equality Act, first proposed in 1974 and most recently proposed in 2019, Congress sought to amend Title VII to add prohibitions against discrimination based on sexual orientation and gender identity that the court today held are, and always have been, covered by the 1964 law. Nearly two dozen state legislatures also passed legislation offering separate protection against discrimination based on sexual orientation and gender identity, and many other state legislatures considered and rejected such legislation. All or nearly all of these legislatures did so with the understanding that discrimination on the basis of sex differed from discrimination on the basis of sexual orientation or gender identity.
More:
https://www.scotusblog.com/2020/06/symposium-the-triumph-of-textualism-only-the-written-word-is-the-law/#more-294400
