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07/09/2020

Intentionalist and Textualist Critiques of Bostock v. Clayton County [updated]
Michael Ramsey

For an intentionalist perspective, in The Public Discourse, Robert Lowry Clinton (Southern Illinois): Textual Literalism and Legal Positivism: On Bostock and the Western Legal Tradition.  From the introduction: 

Much ink has been spilled about the Supreme Court’s decision in Bostock v. Clayton Countyin which Justice Neil Gorsuch held that the plain meaning of the relevant words in Title VII of the Civil Rights Act of 1964 entails forbidding employment discrimination on the grounds of sexual orientation and gender identity as part of forbidding discrimination based on “sex.”...

While the dissenting opinions of Justices Alito and Kavanaugh are sufficiently persuasive to defeat the majority’s inclusion of sexual orientation and gender identity within Title VII’s understanding of “sex,” I wish to bring to light another feature of the issue before the Court in Bostock. This feature is the wider jurisprudential background that bears upon not merely the issue in these cases, but legal interpretation more generally. One can only hope that the approach offered in the majority opinion does not become the new normal, because such a move would trash more than two millennia of legal development.

...

Justice Gorsuch’s opinion for the Court in Bostock has been hailed as an exercise in “textualism,” an “-ism” that is often touted for its apparent simplicity—a simplicity that is, sadly, most often illusory. The “textualism” employed by Justice Gorsuch in Bostock is not merely wrong (as Justice Kavanaugh effectively demonstrates), but a blatant circumvention of time-honored rules of statutory interpretation in the Western legal tradition. Mere analysis of the words in a legal text is not—and has never been—an end in itself for courts. Rather, it is a means of assisting courts in ascertaining the will of a lawgiver. In the section on “Powers and Duties of Judges,” Justinian’s Institutes declares that “[a]bove all he [the judge] must be sure not to depart from the statutes, imperial pronouncements, and custom.”

Following Justinian, in the Anglo-American legal tradition the most important conventions for interpreting legal documents embody various mixtures of text, tradition and logic. All have the sole purpose of directing courts in their search for the legislative will. In other words, these rules are all “intentionalist”: they are premised on the idea that there is a “true” meaning underlying any written legal text, and that this meaning is founded on the historical intentions of the makers of that text.

And from later on:

These are just a few of the most prominent examples in a seemingly endless train of commentary —with few if any contrary examples. They attest to a centuries-long agreement that the law cannot be read from the mere words of a legal text, but only from the will, or intention, of the lawgiver. Discernment of intent must begin from a consideration of the words used by the lawgiver to express the law, but it cannot end there. The object, end or purpose of the law—more precisely, the “mischief” that it was enacted to overcome—is crucial for determining its meaning. Any uncertainties in the meaning of the terms employed by the lawgiver must be resolved in accord with general custom and common usage at the time the law was enacted.

...

Textual literalism is an illicit preoccupation with the words of a writing divorced from consideration of the meaning being communicated by the writer. According to Vattel, it is a species of fraud: “Good-faith adheres to the intention; fraud insists on the terms, when it thinks that they can furnish a cloak for its prevarications.” Pushed to its logical extreme, as was done in the Bostock opinion, this kind of textual preoccupation generates meaninglessness—which is exactly what an interpreter wishing to attribute meanings not intended by the writer wants to do. Under this approach, words become mere empty vessels into which interpreters can pour anything they like.

(Thanks to Michael Perry for the pointer).

I think this critique is unfair to textualism, although Bostock in particular would be easier to decide on an intentionalist approach.  In general, though, it doesn't seem to me that textualism produces an "empty vessel" at least so long as the meaning of the words is taken in the context in which they were enacted.

For a textualist critique of Bostock, in National Review, Randy Barnett & Josh Blackman: Justice Gorsuch’s Halfway Textualism Surprises and Disappoints in the Title VII Cases.  From the introduction:

[W]e were both surprised and disappointed by Justice Gorsuch’s majority decision [in Bostock]. And after some reflection, we think we know where he went wrong. Justice Gorsuch’s analysis did not begin with first principles. Rather, he simply assumed that decades of case law accurately interpreted Title VII. Indeed, he treated decades of precedent as part of the “law’s ordinary meaning” in 1964. Moreover, Justice Gorsuch failed to recognize the relationship between two essential phrases in Title VII: “discriminate against” and “because of.” These terms cannot be considered in splendid isolation. When combined, they reference discrimination based on bias or prejudice. In short, Justice Gorsuch built an elaborate textualist framework on a shaky foundation. Regrettably, this halfway textualism led Justice Gorsuch astray.

And from the core of the argument:

Let’s start with the first term. How was the phrase “discriminate against” understood in 1964? Justice Gorsuch cites the definition of “discriminate” from Webster’s 1954 New International Dictionary: “To make a difference in treatment or favor (of one as compared with others).” But that’s not the entire phrase used in the statute. Title VII refers to “discriminate against.” And the additional word “against” modifies the meaning.

To define “discriminate against,” Justice Gorsuch relied on a 2006 decision by Justice Breyer, which stated “no one doubts that the term ‘discriminate against’ refers to distinctions or differences in treatment that injure protected individuals.” However, Justice Breyer was interpreting a different provision of Title VII that governed retaliation. Moreover, Justice Breyer made no effort to understand how “discriminate against” was understood in 1964. Instead, he relied on a 1989 decision by Justice William Brennan. But this decision did not turn on the meaning of “discriminate against.” Rather, Justice Brennan considered the phrase “because of.” Justice Gorsuch’s research trail slammed into a brick wall. Yet despite this incomplete analysis, Justice Gorsuch concluded that the phrase “to ‘discriminate against’ a person, then, would seem to mean treating that individual worse than others who are similarly situated.”