The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I have written quite a bit about Blue Monday, but haven't yet offered my own analysis of Bostock. Quite deliberately. I need some time to carefully consider and reflect on each aspect of the majority opinion, and the two dissents. In the interim, I'd like to provide a sampling of the emails I've received about the case.
The first email expresses what many rank-and-file conservative lawyers shared with me: a feeling of disappointment and letdown.
I'll be honest, after yesterday I was feeling quite disheartened about the conservative legal movement. I felt like I had been promised so much more (mainly, truly conservative judges) if I gave the GOP my vote year after year. I'm so glad to know I'm not the only one. It's encouraging to know the scholars and professors leading our conservative legal movement still hold to our principles.
The second email worries how Bostock will be used by Chief Justice Kagan in the future to reach progressive results under the false "flag" of textualism:
I find Bostock demoralizing- Gorsuch has just given Kagan carte blanche to rewrite any law she wants and call it textualism. If Gorsuch can do it, then anyone can. If Gorsuch can rewrite Title VII in this way, then we can rewrite anything to say whatever results we want and say it's textualist. Gorsuch just put a textualist gloss on purposivism. If Congress wants to rewrite Title VII, good! That's their job. But Gorsuch just sent us Fed Soc types back dramatically. The law is not a semantic game, but that's what Gorsuch just said it was.
The third e-mail speaks to our current political realities.
Gorsuch's majority opinion was a double kill-shot and will make him the last of the self-described textualists on the Court. In the short term, he disembowled Trump's last shot at re-election, so Justices Ginsburg and perhaps Breyer will be replaced by President Biden. In the long term, two things will happen. First, no GOP White House will ever trust a textualist again. Instead, Republicans will do what Democrats have always done: look for someone who shares their policy preferences. Second, Bostick will convince the rising generation of legal conservatives to largely abandon textualism. Not because textualism led to a liberal outcome, but because Gorsuch did so with reasoning that was embarrassingly thin. In the end it makes textualism seem like the emperor with no clothes. So the rising generation will splinter, some turning to natural rights, some looking to the common good, and some just trying to bring about naked policy preferences. In James Fenimore Cooper's classic novel, the Mohicans were reduced to one lone man because of external pressures: disease and war. Gorsuch will be the last of the Court's textualists. But this extinction is entirely self-inflicted.
I can speculate on one direct consequence of Bostock. Conservative legal groups that appealed to popular audiences will soon have more difficulty raising funds. And in that vacuum other groups will emerge who are not focused on textualism and originalism, but on social conservatism as a direct goal.
Tenure affords me the protections to speak out freely about those outside and inside my own camp. Not everyone has that luxury. Indeed, internecine squabbles are often the most difficult: it is far easier to criticize an opponent than to criticize a friend whom you rely on. But I can assure you that dissent is in the air.