Symposium: The triumph of textualism: “Only the written word is the law”

Jonathan Skrmetti is chief deputy attorney general of the state of Tennessee, which filed an amicus brief on behalf of 15 states in support of the employers in Bostock v. Clayton County and Harris Funeral Homes v. EEOC.

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.

The court recognizes that its interpretation deviates from the historical application of Title VII and acknowledges that under some circumstances such a disparity can be evidence that the meaning of statutory terms has changed since adoption. If the meaning of the language has shifted, then the original public meaning of the law should prevail. The law only has force to the extent that Congress has passed it. Just as the court rejects subsequent legislative history outright as having any bearing on interpreting the statute, so too are any post-passage linguistic developments irrelevant to the court’s task. But the parties in Bostock conceded that the meaning of the relevant terms has not changed since the initial passage of Title VII, and thus for the court the simple result is that the law is what the law says.

The dissenters do not disagree with that proposition; their shared basis for dissent is whether the text of the statute exclusively supports the majority’s reading despite the dissenters’ own more modest reading of the statute’s scope and the near-universal consensus in the decades after Title VII’s passage that the law meant something other than the majority’s reading.

The dissenters share Gorsuch’s zeal for democratic accountability and the rule of law but believe his opinion strays far from those ends. Both Justice Brett Kavanaugh and Justice Samuel Alito, joined by Justice Clarence Thomas, begin their dissents with forceful declarations that Congress should decide whether Title VII extends to discrimination based on sexual orientation or gender identity. Both dissents accuse the majority of stepping into the legislative role.

Kavanaugh emphasizes the distinction between ordinary meaning, which courts must follow, and literal meaning, which they should not, except to the extent it corresponds with ordinary meaning. With a barrage of authority distinguishing between good textualism and literalism, led by a blunt quote from Scalia, Kavanaugh makes the case that a literal interpretation contrary to ordinary meaning undermines the rule of law and democratic accountability. He then looks to the history of Title VII and the distinction between sex discrimination and sexual-orientation discrimination in ordinary usage and concludes that the court’s interpretation is simply wrong and supplants the role of Congress. Kavanaugh ends with an acknowledgement of the “the important victory achieved today by gay and lesbian Americans,” recognizing the steep odds they have faced both in their daily lives and in the legislative and judicial arenas. But, he concludes, revising the scope of Title VII was Congress’ job and not the court’s.

Alito makes similar points in his own dissent, albeit with a feistier tone. Pointing to the court’s determination that Title VII is unambiguous despite the apparently unanimous contrary interpretation of members of Congress, Alito declares that “the arrogance of this argument is breathtaking.” Alito attacks the majority’s linguistic parsing of the statute at length. He engages in a broader review of textualism and grounds his approach in an appreciation for contemporary ordinary usage and historical context. Because homosexuality was largely illegal at the time of passage and the term “transgender” did not enter use until the following decade, a person in 1964 would not have understood Title VII to prohibit discrimination based on sexual orientation or gender identity. Alito writes that our society now recognizes the injustice of past practices and this provides an impetus to update Title VII, but changing the statute is Congress’ job and not the court’s. Alito also pointedly notes that although the majority’s opinion “flies a textualist flag,” many of its signatories have not previously espoused textualism. He further notes that the broader methods of interpretation favored by these justices, which revolve around congressional intent and legislative history, weigh heavily against the court’s position. Finally, Alito looks at the sweeping policy implications that may follow from the majority’s opinion, implicitly arguing that any decision to trigger such transformational changes throughout society is better left to Congress.

In sum, the three Bostock opinions are a master class in defining and applying textualism. As far as the Supreme Court is concerned, we really are all textualists now.

Even under this textualist consensus, the traditional analytically intensive method of statutory interpretation, focused on context and comparison and history, is not altogether dead. The court notes that when a statute is ambiguous, broader interpretive tools may apply. But given the majority’s determination that 42 U.S.C. § 2000e-2(a)(1) lacks ambiguity despite decades of widespread contrary interpretation, the category of truly ambiguous statutes may be awfully small. In a passage legislators should internalize, Gorsuch explains that because Title VII is written in “starkly broad terms” and imposes expansive liability based on discrimination against individuals and not groups, “[i]t has repeatedly produced unexpected applications.” The court’s unwillingness to consider anything beyond the text of the statute sends an unambiguous message to Congress: Draft carefully.

The majority recognizes that Bostock may have significant policy implications beyond employment nondiscrimination. Both the dissents and the majority point to looming issues such as sex-segregated bathrooms, locker rooms and dress codes, and as Alito prophesies, litigants will doubtless raise Bostock in other contexts such as freedom of speech, religious liberty, health care, sports and who knows how many other hot-button issues. Gorsuch largely washes his hands of these ramifications – the text is the text and the Supreme Court’s role is to read what the Congress has given it. The majority opinion does try to soften the blow, though, by pointing to Title VII’s religious exemption and suggesting that the Religious Freedom Restoration Act “acts as a super statute, displacing the normal operation of other federal laws, [and] might supersede Title VII’s commands in appropriate cases.” We will find out soon whether RFRA is capable of donning that cape.

Further, the ongoing debate over the Equal Rights Amendment will change significantly as a result of Bostock. Although recent discussion regarding the ERA has focused on the ratification process and the procedural deficiencies of the current expired proposal, critics of the proposed amendment have long warned that it would be read expansively to constitutionalize a range of issues beyond women’s equality. Bostock appears to lend credence to these concerns. Indeed, in its survey of historical understandings of Title VII, the court’s opinion considers statements from the 1970s suggesting that the ERA may prohibit discrimination based on sexual orientation. Opponents of the Equal Rights Amendment, a group one might anticipate to be disheartened by today’s ruling, may find themselves grateful that the court resolved the full scope of sex discrimination in a statutory context and did not wait until the issue had been constitutionalized. Even if the ERA is not adopted, however, and although Bostock focuses emphatically on statutory interpretation, Alito is surely correct that this case will be heavily cited in forthcoming constitutional litigation.

Bostock will stand as one of the most significant cases in recent memory for a variety of reasons, and the sum of its impact will not be known for many years. Because the decision deals solely with statutory law, Congress is still free to revisit Title VII and may take any number of steps to reverse or mitigate the decision. Other courts, or the Supreme Court, may use Bostock as a jumping-off point to develop more expansive court-made protections based on sexual orientation and gender identity. But the immediate takeaway is that this is a new highwater mark for textualism, as District of Columbia v. Heller was for originalism, with the unanimous court identifying textualism as the sole appropriate method for resolving an important statute’s meaning. Gorsuch’s proclamation that “[o]nly the written word is the law” did not stir the slightest disagreement. Various members of the court will surely employ other methodologies in upcoming cases, but Bostock leaves no doubt that textualism is the predominant method of statutory interpretation for the current court.