The Volokh Conspiracy
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Randy Barnett and I published a new essay in National Review Online, titled "Justice Gorsuch's Half-Way Textualism Surprises and Disappoints in the Title VII Cases." We spent some time thinking about Bostock, and recognized precisely where Justice Gorsuch went wrong.
Here is the introduction:
Title VII of the Civil Rights Act of 1964 made it unlawful for employers to "discriminate against" employees "because of . . . sex." Did that landmark statute also prohibit discrimination against employees because of their sexual orientation or gender identity? In Bostock v. Clayton County, the Supreme Court answered yes by a 6–3 vote. Justice Neil Gorusch wrote the majority opinion, which was joined by Chief Justice John Roberts, and the Court's four progressives. Justices Alito, Thomas, and Kavanaugh dissented.
But we were both surprised and disappointed by Justice Gorsuch's majority decision. 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 half-way textualism led Justice Gorsuch astray.
And the conclusion:
During oral argument in October, Justice Gorsuch suggested that this "case is really close, really close, on the textual evidence." Something apparently changed between October and June when he concluded that the "law's ordinary meaning" in 1964 was "unambiguous." But that meaning only seemed unambiguous because it was premised on a faulty foundation: moving from the ordinary meaning of the phrase "discriminate against because of sex" to a technical meaning of "because of."
In the wake of Bostock, some political conservatives have started to question the merits of textualism itself. We understand the visceral reaction to this surprising decision, but we think this criticism is overstated. Textualism provides the strongest basis to criticize Justice Gorsuch's majority's decision in Bostock.
In dissent, Justice Alito charged that Justice Gorsuch's opinion "sails under a textualist flag," but is more like a "pirate ship." Justice Alito's metaphor is half-right. Justice Gorsuch flew the textualist flag at half-mast.
We welcome any comments or feedback.