Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Tuesday, June 23, 2020

Can Textualism (and Originalism) Expand Judicial Discretion? An Analysis of Justice Gorsuch’s Opinoin in Bostock v. Clayton County

The Supreme Court’s decision in Bostock v. Clayton County last week confirmed that, under Title VII of the 1964 Civil Rights Act, unlawful employment discrimination based upon sex includes discrimination based upon homosexuality or transgender status. The decision is a clear landmark for the advancement of LGBTQ rights through the Supreme Court. But more subtly, it may be a landmark for “ordinary public meaning” interpretation of legal texts by the Court. And it traces back to the surprising author of the opinion, Justice Neil Gorsuch.

Justice Gorsuch’s opinion applies a familiar interpretive method to the question facing the Court. At the outset of his analysis, he promises to interpret the statute “in accord with the ordinary public meaning of its terms at the time of its enactment.” That texualist approach aims to limit judicial discretion when uncovering the meaning of a text, cabining decisions to the words on the page themselves.

To undertake his textualist interpretation, Gorsuch refers to contemporary dictionaries of the early 1960s to define “sex” and “because of” in the statute. He uses those dictionary definitions, along with a fair bit of the Court’s precedent, to assert that the statute prohibits discrimination where an individual’s sex is a but-for cause of that discrimination. “In other words,” Gorsuch writes, “a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause” of discrimination. And because “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” Title VII prohibits employment decisions based upon an individual’s homosexuality or transgender status.

While this may seem to be standard public-meaning textualism, Gorsuch offered a potentially dramatic shift in that interpretive method while rejecting the dissent’s claim that few living in 1964, let alone the statute’s drafters, would have believed that the statute prohibited discrimination because of sexual orientation or gender identity. Gorsuch admitted that ordinary public meaning interpretation “must be sensitive to the possibility a statutory term that means one thing today or in one context might have meant something else at the time of its adoption or might mean something different in another context,” which sometimes requires looking to the understandings of the text’s drafters. But for Gorsuch, the employers and dissenters fail to suggest that the statute “bears some other meaning”; instead, they “merely suggest that, because few in 1964 expected today’s result, we should not dare to admit that it follows ineluctably from the statutory text.”

This may be monumentally important change in “original public meaning” versions of textualist, and more broadly originalist, methods of interpretation. Underlying Gorusch’s interpretation is a belief that a text means what it was understood to mean at the time it was enacted. That belief, long a creed of conservative jurists, was commonly invoked to limit judicial discretion by ensuring that later interpreters of a text can only follow what the words chosen by the document’s drafters meant, according to historical practice. But Gorsuch’s interpretation expands judicial discretion by allowing later interpreters of text to hold the original drafters to the perhaps unintentionally expansive meaning of their chosen terms. It becomes a sort of progressive textualism that justifies, rather than cabins, judicial discretion to expound upon the original intentions of the text’s drafters in politically liberal directions. And if applied in constitutional cases, it may further erode originalism’s long-criticized tether to the intention of any group of founders or well-informed citizens of the founding era. The Bostock dissenters are almost certainly right about the views of those living in 1964, or of the original authors of the Civil Rights Act. But for Gorsuch’s version of original public meaning interpretation, the understanding of those authors or contemporary citizens is less important than the expansive terms the authors chose to employ, which might include new social legal concepts that grew in the public consciousness much later in time.

Whether this is taken as a welcome development depends upon one’s political preferences and interpretive predilections. And its repercussions could be limited if the Court or Justice Gorsuch are willing to bend to the drafter’s intent in other cases. But it provides an avenue for textualist or originalist interpretations that generate much more judicial discretion than those methods traditionally tolerate, which may be an important turning point on the Court for years to come.

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