Tuesday, June 16, 2020

Does Justice Gorsuch's Magnificent Opinion in the Title VII Sexual Orientation and Gender Identity Cases Redeem Textualism?

by Michael C. Dorf

I'll start with the most important point: Justice Gorsuch's opinion for the Supreme Court in Bostock v. Clayton County marks a historic victory for LGBT Americans, for civil rights more broadly, and for the rule of law. It rightly joins the canon of landmark gay rights opinions written by Justice Kennedy, for whom both Justice Gorsuch and I clerked many years ago (in different Terms). Indeed, this decision is the first majority opinion in a case vindicating LGBT rights written by any Justice other than Kennedy.

What's more--and I say this with the greatest respect and admiration for my one-time boss--in sheer craftsmanship and with the possible exception of Obergefell v. Hodges (about which more momentarily), Bostock is the best of the bunch. It lacks Justice Kennedy's allergy to the conventional doctrinal categories. In Romer v. Evans, Justice Kennedy did not exactly reconcile what has come to be known as "rational basis scrutiny with bite" with the balance of equal protection case law. In Lawrence v. Texas, he failed to say whether same-sex sexual intimacy is a "fundamental right." There were ways of explaining and justifying what Kennedy wrote, of course. Prof Akhil Amar admirably explained Romer; Prof Laurence Tribe likewise masterfully massaged a fundamental right out of Lawrence. But the scholars' efforts were needed.

Obergefell was different. As I wrote on SCOTUSblog the day after that decision, the dissenters should have had "little cause for complaint" about how Obergefell's "holding fit with conventional constitutional doctrine," because Justice Kennedy's majority opinion said "with admirable clarity that marriage is a fundamental right and that the state ha[d] not offered a sufficient justification for denying it to same-sex couples." Some people may not have a taste for what I called Justice Kennedy's "soaring rhetoric" in Obergefell, but others might reasonably think that a landmark ruling calls for such language.

Justice Gorsuch's prose style differs from Justice Kennedy's. Gorsuch is staccato where Kennedy is legato. But the accumulation of Gorsuch's rapid-fire hypothetical examples in Bostock works extremely well overall. He coins a catchy phrase in rejecting the defendants' argument that discrimination because of sex doesn't include sexual orientation or gender identity discrimination because those are sub-categories that Congress did not single out: There is no "such thing as a 'canon of donut holes,' in which Congress's failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception."

Justice Gorsuch's examples are vivid and persuasive. The defendants suppose a hypothetical employer who refuses to hire anyone who self-identifies as gay or trans on a job application, without the employer knowing their sex. In explaining why distinctions drawn on the basis of sexual orientation and gender identity nonetheless necessarily are drawn on the basis of sex, Justice Gorsuch asks the reader to "imagine an applicant doesn’t know what the words homosexual or transgender mean. Then try writing out instructions for who should check the box without using the words man, woman, or sex (or some synonym). It can’t be done." Brilliant! 

And so, having lavishly (but appropriately) praised Justice Gorsuch and his opinion in Bostock, I pose a question for myself. Does the fact that he was convinced by textualist arguments and wrote a highly textualist opinion lead me to rethink my skepticism of the ability of textualism to actually constrain judges--as expressed at greatest length and most recently in the forthcoming Cornell Law Review article by Prof Buchanan and me about which I blogged here? Although I am always open to rethinking my views and changing my mind, the short answer is no. I'll now elaborate.

On its face, Bostock looks like a debate between textualism for the majority and intentionalism for the dissent. Virtually no one in the 1964 Congress intended or expected that Title VII would outlaw sexual orientation or gender discrimination in employment. Thus, the intentionalism case for the dissent is strong. However, Justice Gorsuch says in true textualist fashion that the text, rather than the subjective intentions or expectations of the legislators who enacted the text, controls, and thus the plaintiffs win. The LGBT plaintiffs have textualism to thank for their victory in Bostock, right?

Not so fast. For one thing, as Prof Buchanan and I discuss in our article and as I previously explained in the 1998 Harvard Law Review, for many years now, the chief rival to textualism in statutory interpretation has not been an intentionalism that looks to the legislature's subjective intentions with respect to particular questions but purposivism, which looks to the objective purposes at which the legislature aimed. Although Justice Gorsuch happened to write his opinion in a textualist style, it would have been a matter of child's play to write an equally or more persuasive opinion in a purposivist style. Purposivists agree with textualists that legislators' subjective intentions and expectations do not necessarily control but typically acknowledge greater vagueness in application and their own role in filling in the blanks by extrapolating from the purposes pursued by the legislature as expressed in the statute.

How would a purposivist opinion have looked in Bostock? It would have begun by acknowledging--as the case law generally does--that sex-role stereotyping is a, or even the, central evil at which prohibitions on sex discrimination aim. From there, it is a very short step to saying that discrimination on the basis of sexual orientation or gender identity is sex-role stereotyping. Such discrimination rests on the stereotypes that men should be attracted to women and vice-versa as well as various stereotypes about how people assigned to particular sexes at birth based on their genitalia ought to dress and act.

Scholars like Prof Andrew Koppelman have long argued that anti-LGBT discrimination is sex discrimination using an analogy to Loving v. Virginia, which invalidated an anti-miscegenation law. Conservatives typically pushed back by saying that while anti-miscegenation laws rested on white supremacy, anti-LGBT discrimination didn't rest on patriarchy, so the analogy was superficial and thus flawed. Prof Koppelman and others responded--correctly--that anti-LGBT discrimination nonetheless is sex discrimination because it rests on sex stereotyping.

That's a powerful rejoinder. Although Justice Gorsuch's majority opinion in Bostock adverts to stereotypes in characterizing prior precedents, it doesn't much rely on the sex-stereotyping point. The Loving analogy as it appears in the majority opinion is more formalistic and thus somewhat less persuasive than it would be in a purposivist opinion. Thus, the fact that the Bostock opinion is written in a textualist rather than a purposivist style does not give it special force.

However, my question was not whether textualism is the best way to write an opinion. My question was whether textualism is constraining. And it's possible that Justice Gorsuch's adherence to textualism motivated him to vote for the plaintiffs in Bostock. Textualism could also explain the vote of Chief Justice Roberts, right?

Sure, it's possible, but let's consider a few other possibilities.  Before doing so, let me clarify my critique of textualism. As Prof Buchanan and I say in our forthcoming article, 
we do not mean to stake out a nihilistic position. We acknowledge that in a great many contexts, the law’s content is sufficiently determinate to provide primary actors and government officials with enough guidance to allow the law to play its vital coordination function. We agree with a prominent response to the most extreme claims of legal realism and later critical legal studies: focusing almost exclusively on contested appellate cases provides a misleading picture of the law as a whole.
Sometimes the law's text is even clear in cases that reach the Supreme Court. Bostock is arguably such a case. Thus, when the Court granted cert last year, I wrote a Verdict column saying that the case would put the self-described textualists to the test, precisely because the textualist argument for the plaintiffs is very strong.

But if the textual argument is so strong in Bostock, why wasn't the decision unanimous? Indeed, why did Justice Alito (joined by Justice Thomas) accuse the majority of faux-textualism? "The Court’s opinion is like a pirate ship," Alito charged. "It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should 'update' old statutes so that they better reflect the current values of society."

So who are the real textualists? I tend to the view that the majority has the better argument, but then I need an account of why the dissenters didn't see it that way. One possibility is that the text of Title VII really does command the pro-plaintiff result in Bostock but the dissenters were so driven by their ideological motives that they could not bring themselves to vote for an outcome they disdained on policy grounds. That could perhaps explain Justice Alito--who is in some respects the most committed conservative culture warrior on the Court these days--but seems inconsistent with Justice Kavanaugh's concluding statement in dissent, echoing the dissent of Chief Justice Roberts in Obergefell, in disavowing any anti-LGBT animus and expressing sympathy with the policy of the majority opinion. Kavanaugh wrote that
it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. 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.
I have no reason to doubt Justice Kavanaugh's sincerity (although I think it unfortunate that he did not acknowledge the equally important victory for transgender Americans). Meanwhile, although Justice Thomas joined Justice Alito's somewhat less gracious dissent, he went out of his way in Lawrence v. Texas to write that he thought Texas's same-sex sodomy prohibition warranted repeal on policy grounds. It would thus be unfair to say that the difference between the majority and the dissent in Bostock was simply a policy disagreement.

But the key word there is "simply." Policy differences alone do not explain the voting pattern in Bostock but they explain it nonetheless. Justice Gorsuch's own opinion shows why.

Early in the Bostock opinion, Justice Gorsuch explains that sex discrimination counts as the reason for an adverse action under Title VII if sex discrimination is a "but for" cause of the adverse action. That does not mean, however, that sex discrimination must be the only cause. There can be multiple but-for causes. Here's his powerful explanation:
Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing “because of sex” if the employer would have tolerated the same allegiance in a male employee. Likewise here. When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play—both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.
Now let's apply that reasoning to the motives of the conservative Justices. A strong textual argument is a necessary but not a sufficient condition for a conservative Justice voting in a way that runs contrary to a position embraced by the conservative establishment. In addition, the Justice must also feel relatively strongly that the conservative establishment position is misguided. Both a strong textualism argument and a strong policy view are but-for causes of the Justice's votes. If so, then we need not impute homophobia or transphobia to any of the dissenting Justices. It is enough to explain their break with Justice Gorsuch and Chief Justice Roberts to observe that Gorsuch and Roberts are more sympathetic to the policy of LGBT rights than are the dissenters. And I think that's clearly right if we're comparing Gorsuch and Roberts to Alito and Thomas.

If I'm right about all of that--and I am!--then the only seeming outlier is Kavanaugh. I have no reason to think that Kavanaugh is less sympathetic to LGBT equality on policy grounds than are Gorsuch and Roberts. But in Kavanaugh's case we also have a jurisprudential difference. Unlike Alito and Thomas, Kavanaugh acknowledges the strength of the textualist argument for the plaintiffs, but Kavanaugh says that the majority improperly relies on a "literalist" rather than an "ordinary meaning" approach to understanding the original public meaning of Title VII.

Yet if the difference between Kavanaugh, on one hand, and Gorsuch and Roberts, on the other, is the difference between two flavors of textualism, that tends to strengthen rather than undercut the notion that textualism as such has little binding effect--unless, that is, we have some reliable means of distinguishing between literalism and ordinary meaning, and are confident that this means is not itself either a version of some other approach entirely (like purposivism or intentionalism) or a mask for policy preferences. I have seen no evidence that such reliable means exist.

We can and should praise the Gorsuch opinion in Bostock without embracing anything called textualism.


Joe said...

It might be interesting to see how Prof. Segall would address this issue. On Twitter, he said that it turned on context, not just text.

I have defended (w/o being his law clerk) various gay/lesbian opinions of Justice Kennedy, including as a matter of median opinion. The criticism of the same sex marriage opinion to me repeatedly was lame. As to the use of flowery pro-marriage rhetoric (which for example concerns Prof. Melissa Murray, top on my short list for justice nomination), well, the advocates there really laid that on thick too.

As a whole, I think Gorsuch's opinion is good though I'm not quite so gung ho on the "it's obvious" tone at times, which is basically his m.o. Simply put, there has been some development of meaning here. It's okay to say that. Prof. Segall noted this on Twitter too, also referencing "restraint of trade" per an older statute.

Thomas' Justice Stewart-esque dissent in Lawrence would "sell" better if he didn't also join Scalia's dissent. Scalia's co-writer (books) fwiw said Scalia would have dissented in this case. Who knows.

The flag that Kavanaugh only talked about "gay and lesbians" is a good catch.

Doron said...

Thanks Mike for a brilliant analysis, as usual. I'd like to take issue with one - pretty minor - sentence above. It reads: "How would a purposivist opinion have looked in Bostock? It would have begun by acknowledging--as the case law generally does--that sex-role stereotyping is a, or even the, central evil at which prohibitions on sex discrimination aim."
But I seriously doubt that sex stereotyping was either the principle evil the law was concerned with (PWC came a full generation after the 1964 Act), or that is the main purpose behind banning discrimination "because of ... sex."
Deciding what the main purpose of the law - which, as you correctly noted, is far and distinct from what each legislator intended - is a long, arduous process, and cannot be concluded with a single, off-hand remark. But in this case, I think that - ironically - Gorsuch's so-called "textualist" analysis revealed just that: prohibiting any form of discrimination against a person based in whole or in part on their sex. Stereotyping has very little - if any - role to play in that; definitely not more than motherhood, or the need to deduct more of each paycheck, or to suffer sexual harassment.

Jason S. Marks said...

Prof. Dorf,

I think I would take issue with the praise heaped upon the majority opinion and its textualist appeal. In fact, I would argue that this case demonstrates the dangers of a rigid textualist approach. When one speaks of racial discrimination, we understand that a person was treated differently for the color of his or her skin -- an immutable characteristic to use the language of many Supreme Court opinions. Similarly, to say a pregnant woman cannot work while "showing" evinces a prejudice based on gender alone, as only women can get pregnant and carry a child. But the immutable characteristic understanding that normally attends to race and sex falls apart in the case of sexual orientation (and hence the need for a different phrase to describe it). While the analogy used by the majority has surface appeal -- discrimination based on attraction to someone because of sex -- it lacks the same linguistic or semantic appeal, or perhaps uniform understanding. I think it silly to associate the public meaning of sex in 1964 with the outcome here; the majority itself admits the outcome would have shocked the drafters of Title VII. So we have a construct of the majority's own making based on word play or clever logic. Rules of statutory construction normally do not work that way. If two meanings would both be reasonable, we say the meaning is ambiguous and must look to legislative intent. So, again, we see judicial jujitsu. It would be more honest to say we have two, at least, reasonable constructions, and proceed to examine the purpose behind the law (your purposivism defense holds much better here). But we still have an issue with how far we can take the antidiscrimination principle in this context. Is it too far to say that the word "sex" encapsulates the intent not to discriminate on the basis of sexual orientation? In essence, we have issues with both textualists and living Constitutionalists in this case. I assume Prof. Segall would say let the legislature amend the law to include sexual orientation and that solves many problems, and I would tend to agree. I find much appeal in the purposivism approach, but in this case it highlights the problem of imposing a meaning we know would have been rejected by those who drafted the law.

But my main point would be to disagree that the majority opinion is a model of textualism. If anything, I think it shows the problems inherent in a purely textualist approach, taking the word outside any context and outside of time and engaging in semantic games. It does not seem the path of integrity in jurisprudence. Judges should do better, and judicial philosophy has to do better to avoid the politicization that will follow from this case. I have considered myself a disciple of Dworkin for years, but the last four to seven years of opinions on the Court have made me question whether we can have honest judicial philosophy and approach anymore. Have we in fact reached the end of jurisprudence?

Jim said...

You have put your finger on the reason for the lack of "oomph" in the majority opinion. Although I was pleased with the outcome, and although the opinion is a good, well written example of the Gorsuch "style" and his analytical approach, I realized at the end that there were virtually no references to sex stereotyping. In Gorsuch's account, sexual orientation and trans discrimination are a combination of two forms of discrimination, and because one of these is sex discrimination, it is prohibited by the statute. I feel like that's not the most accurate description of the thought process behind the discriminatory actions, and that sex stereotyping is a better account of what's "really" going on. Granted, notions of sex stereotyping were not prevalent when Title VII was enacted in 1964, but the Supreme Court has already approved this characterization of the discrimination outlawed by the statute (e.g. in Price Waterhouse). It seems to me that Gorsuch went out of his way not to embrace this theory of discrimination -- presumably because it is insufficiently "textual" -- and that his opinion is less satisfying and persuasive as a result. We simply are better at articulating how discrimination works than folks were back in 1964, and I think it's fair game for judges to use this new-and-improved description of what Congress did in enacting Title VII. But then, purposivism is fine with me!

As for Kavanaugh's dissent, I think you give him too much credit. As you say, Roberts used similar "congratulatory" language in his Obergefell dissent. But that dissent read as sarcastic and mean-spirited to me, since his point was that advocates for same-sex marriage could have achieved a more meaningful victory by continuing to pursue legislative solutions rather than seeking a nationwide edict from an "activist" court. I view Kavanaugh's dissent in much the same way, except that he is more careful and strategic in his rhetoric. He opens his dissent by pointing to the preferred (to him) legislative solution and reminding us that judges are not legislators, and then closes the dissent with the "sincere" language you have quoted. If you put these passages together, however, I see a kinder, gentler version of Roberts' point -- i.e., that the victory here is less legitimate because it has once again been awarded by an activist court. Even apart from his telling omission of the trans litigant before the court, I am less willing to assume that Kavanaugh's closing language is sincere.

Michael C. Dorf said...

Thanks all for the interesting comments. I want to associate myself with Jim's points in response to Doron's skepticism of the proposition that opposition to sex-stereotypes is the central purpose of Title VII. For one thing, I think Doron's view is more intentionalist than purposivist. A characterization of a statute's central or principal purpose need not be a purpose that was intended as such by particular or even any legislators. It is the purpose that best makes sense of the statutory provision. Now w/ Title VII, obviously an easier candidate is something like "to ensure that people are not denied employment opportunities based on illicit characteristics." I don't disagree with that at all, but my question was how we identify--w/in the employment context--what the central evil that the sex discrimination prohibition in particular points at. And there I think it's not at all a stretch to say the core idea is that one's biological sex oughtn't to be used against one as the basis for defining one's roles in society. That cuts across anti-discrimination law, to be sure, but so does the use of the category of "sex" as a prohibition.

I regard other comments critical of Gorsuch's textualism and in favor of purposivism as friendly in spirit. I'm planning on writing a follow-up piece on this theme and on Kavanaugh's claims with a tentative title of "Is Literalism Really a Thing in Statutory Interpretation? A Reply to Justice Kavanaugh and a Further Critique of Textualism"

Unknown said...

Gorsuch: "Then try writing out instructions for who should check the box without using the words man, woman, or sex (or some synonym). It can’t be done."

I agree that it can't be done. E.g., "Check the box if you are physically attracted to persons of the same sex as you." So someone -- here, the discrimination victim -- must know the sex of the victim, but the discriminator need not. How then is the victim's sex a but-for cause of the discriminator's policy or action?

Michael A Livingston said...

I am surprised that so many people were surprised by Gorsuch. Textualism is not originalism. It looks first to the statute, but then to its coherence with the rest of the law. Gorsuch takes textualism seriously.