The Volokh Conspiracy
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Former Seventh Circuit Judge Richard Posner made a surprise appearance at oral argument in the Supreme Court yesterday. He came under a barrage of criticism even though he wasn't a judge whose decisions were being reviewed and wasn't even a judge who wrote any majority opinion in any case involving the issues at hand.
More poignantly, perhaps, he came under the harshest criticism from some of the most prominent and effective advocates of LGBT civil rights, who agree with him on substance but sought to distance themselves from his methodology.
What earned him this obloquy? In a 2017 concurring opinion in Hively v. Ivy Tech Community College (7th Cir) (en banc), shortly before his retirement, Judge Posner agreed with the majority that Title VII's prohibition on "discrimination because of . . .sex" should be understood to encompass sexual-orientation discrimination. But he offered a rationale distinct from the majority opinion by Diane Wood with its careful parsing of dictionary definitions, application of intervening precedents, original-expected-applications methodology, the (in)significance of post-ratification developments, and sexual-orientation analysis:
I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of "sex discrimination" that the Congress that enacted it would not have accepted. This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch.
Posner claimed, with considerable descriptive (if not prescriptive) power, that this method of construction was actually quite common among judges of all ideological stripes. Some uses of this method have been congenial to modern political conservatives. Most of it has not been. Courts have used it with constitutional provisions like the First, Second, Fourth, and Eighth Amendments. They have done it with statutes, like the Sherman Act of 1890, which gave courts a common-law like power to develop a body of law to prevent combinations restraining trade.
And they have done it repeatedly with Title VII itself, using the 1964 Civil Rights Act in common-law-like fashion to develop responses to increasingly complex understandings of the phenomenon of "sex discrimination":
[I]t has taken our courts and our society a considerable while to realize that sexual harassment, which has been pervasive in many workplaces (including many Capitol Hill offices and, notoriously, Fox News, among many other institutions), is a form of sex discrimination. It has taken a little longer for realization to dawn that discrimination based on a woman's failure to fulfill stereotypical gender roles is also a form of sex discrimination. And it has taken still longer, with a substantial volume of cases struggling and failing to maintain a plausible, defensible line between sex discrimination and sexual-orientation discrimination, to realize that homosexuality is nothing worse than failing to fulfill stereotypical gender roles.
Now, he suggested, is the time to acknowledge that the statutory line between "sex" discrimination and "sexual-orientation" discrimination cannot be held, and that sexual orientation discrimination falls well within the domain of illegal sex stereotyping:
The compelling social interest in protecting homosexuals (male and female) from discrimination justifies an admittedly loose "interpretation" of the word "sex" in Title VII to embrace homosexuality: an interpretation that cannot be imputed to the framers of the statute but that we are entitled to adopt in light of (to quote Holmes) "what this country has become," or, in Blackstonian terminology, to embrace as a sensible deviation from the literal or original meaning of the statutory language.
Posner, who hated originalism because he thought it offered a feigned authenticity and false objectivity, called his method of statutory construction "judicial interpretive updating." Legions of critics, including some our own Volokh Conspiracy brethren (for example, here and here), essentially called it lawless. Even Guido Calabresi, the progressive intellectual powerhouse on the Second Circuit, denounced Posner's method as "baloney":
There are people like the critical legal theorists, and people like Judge Richard Posner—who is simply a critical legal theorist of the Right—who say that courts can do anything they want because language does not tell us anything. . . . To say either that language does not mean anything, or that it tells us exactly what everything means, is baloney. The truth lies somewhere in between. Text means language in context.
Posner can be acquitted on the most extreme charge that he believes language means nothing at all, and that therefore judges can simply do as they please to suit their policy preferences. On the other hand, some of his critics will have a much harder time maintaining that judicial application of "discrimination because of … sex" means just what it would have meant in 1964. Not even the employers or the government think the application of Title VII has been–or should have been–static.
Posner's approach to statutory construction lies somewhere between pretending that the judicial role is either just to uncover fossils untouched by human civilization over the ages or to look up at random collections of stars and imagine they form the shape of Ursa Major. He does suggest that reading sexual orientation into Title VII requires a "loose 'interpretation' of the word sex."
Let's call it the loose canon of statutory construction: where a statute is very old, and the principle embodied in the language is susceptible to more than one meaning, and where experience in the intervening time has exposed unforeseen layers of complexity in that principle, and where the principle can fairly be applied to circumstances unforeseen by the enacting legislature, it's appropriate for courts to adopt new understandings.
The loose canon was on the minds of every judge and advocate in the Supreme Court yesterday.
Which brings us to the first set of oral arguments (transcript here), combining Bostock v. Clayton County (11th Circuit) and Altitude Express Inc. v. Zarda (2nd Circuit). As in Hively, the question was whether sexual-orientation discrimination is a form of sex discrimination prohibited by Title VII. Stanford law professor Pam Karlan delivered a fluent and informed argument for the men who claimed they had been fired for being gay.
In his very first question for Karlan, Chief Justice Roberts asked:
Do you agree or disagree with Judge Posner's statement that the statute should be read to encompass sexual orientation discrimination to "avoid placing the entire burden of updating old statutes on the legislative branch"?
Karlan was ready with an unequivocal repudiation of the loose canon:
I disagree with Judge Posner. I don't think you need to do any updating here. I think you should read the words as they were understood then, which is "men" and "women."
Next, Justice Alito noted that Congress has so far failed to pass the Equality Act, which would explicitly add "sexual orientation" and "gender identity"to Title VII. Shouldn't that have some significance for the way Title VII is interpreted, and weren't the plaintiffs asking the Court to do Congress's legislative work? He continued:
We might as well just take the Equality Act and issue that as our opinion and say, as Judge Posner said, that the courts need to intervene on questions like this when the legislative branch simply will not do so. What would we—how would we respond to that question?
Now Karlan replied by denouncing the Loose Cannon himself:
Well, the fact that a loose cannon like Judge Posner says, "do whatever you feel like" is not what we're asking for. We're saying, if you read the words "because of sex" and you ask, in 1964, what did those words mean? They meant treating men differently from women.
The do-whatever-you-feel-like school of statutory construction is a bete noir, or at the very least a secret society whose members rarely confess. It overstates Posner's loose canon to say he is a member, much as Calabresi exaggerated Posner's faults.
But Karlan went on to make the very cogent point that Congress's original expectations about what "sex discrimination" might have meant should no more govern the sexual-orientation cases than should its presumed original expectations should govern "sex stereotyping" or "sexual harassment" or many other acknowledged instances of sex discrimination. (In fact, Posner argued much the same thing in Hively.) What should govern, she continued, is the linguistic meaning of "sex" (even if it's understood to refer only to biological sex) combined with the understanding that sexual-orientation discrimination cannot even be conceptualized without reference to sex in that narrowest biological sense. Again, Posner argued in Hively that even given a narrow understanding of sex, as he said Congress understood it in 1964, sexual-orientation discrimination should be prohibited as a form of sex discrimination. But Kaplan had to distance herself as far as possible from Posner, the stand-in for all that is wrong with the federal judiciary.
Less surprisingly, the employer's attorney, Jeffrey Harris, called the case a "particularly pernicious" use of Posner's loose canon because when "Congress seeks to expand the scope of Title VII's liability provisions, it typically couples that itself with an expansion of the religious employers' exemption to Title VII."
That might be a fine balancing-of-interests principle, and it might be something Congress wants to revisit if the Court rules for the LGBT plaintiffs, but in fact Congress has not always coupled expanded Title VII liability with expanded religious exemptions. And neither Bostock nor Altitude Express, a county government and a sky-diving company, respectively, involve religious employers or even claimed religious-conscience rights to fire gay workers.
The second oral argument (transcript here) came in R.G & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (6th Circuit), which raised the question whether discrimination based on "transgender status" is prohibited sex stereotyping or sex discrimination under Title VII. David Cole, the deservedly celebrated law professor and civil-liberties lawyer, argued for Aimee Stephens, a transgender woman who was fired by a funeral home after years of meritorious service when she announced she was transitioning.
In his opening two-minute statement, Cole summarized the arguments for why firing Stephens was discrimination because of sex. The arguments were very similar to those in the sexual-orientation cases. He closed with a whack at the dreaded Posner:
None of these arguments ask this Court to redefine or, in Judge Posner's words, "update" sex. They assume, arguendo, that sex means at a minimum sex assigned at birth based on visible anatomy or biological sex.
This stiff-arm to Posner might have seemed especially gratuitous. In Hively, Posner didn't directly opine on whether discrimination based on transgender status or gender identity amounted to sex discrimination (though he did observe that "now of course transgender persons are common"). It's not entirely clear that he would have reached the conclusion that gender-identity discrimination is also prohibited by Title VII, given what he recited as the comparatively advanced social understanding and particular legal developments regarding sexual orientation. He might have concluded that no comparable social consensus or legal evolution had yet attended our society's understanding of gender identity. But it has to be admitted that the loose canon admits many conclusions.
The Court wasn't done with Posner yet. Justice Breyer started to push Solicitor General Francisco to explain whether the federal government was relying on the uncontested fact that Congress could not have imagined how the Court was being asked to interpret Title VII now. "That's what I think . . . Judge Posner, who had a good point," was suggesting, Breyer said, before adding hastily, "I'm not saying it's a winning point." At that, there was laughter in the courtroom.
The entire legal establishment of the United States made a show of saying that it considers Posner's judicial-interpretive-updating method of statutory construction risible. "We're all textualists, now," it incanted, as if to summon a judicial antibody against the loose-canon contagion.
If the plaintiffs in these cases were to prevail, they knew they had to convince the Court that they were not relying on the Loose Cannon's loose canon. They were not, in effect, cheating by convincing the umpires to update the rules in their favor. They have sophisticated arguments about text and precedent on their side that do not rely on the loose canon, including especially the amicus brief by William Eskridge and Andrew Koppelman. But it's quite clear that, at least in his candor about what he was doing, Judge Posner did them no favors yesterday.
Conservative critics will say that the plaintiffs' lawyers were being disingenuous: they really do embrace the loose canon and are simply making arguments to give one side a "complete victory" in the courts that they could not obtain in Congress, as the Solicitor General warned. Progressives will say that conservative critics are being unfaithful to the very method of interpretation they espouse, namely textualism, simply because they don't like the policy result–protecting gay or transgender employees from discrimination–or because they fear the possible policy consequences of that interpretation in costs to religious liberty or separate-sex facilities. But consideration of such policy consequences, if independent from the textual arguments, would be its own form of loose-canon construction. Everyone, it seems, repudiates Judge Posner's methodology while charging the other side with Posnerism.
Meanwhile, both sides can say that Congress is fully empowered to deal with the consequences of an adverse ruling from the Court as it has in the past when Congress believed the Court erred. If the employers prevail, Congress can add sexual orientation and gender identity to Title VII. If the LGBT plaintiffs prevail, Congress can add greater protection for religious freedom and/or clarify that sex-specific spaces and policies are indeed permissible.