The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last month, Randy Barnett and I wrote an essay for National Review titled Justice Gorsuch's Halfway Textualism Surprises and Disappoints in the Title VII Cases. I have now expanded on that theme in The Atlantic. My proposed title was Justice Gorsuch's Half-Way Textualism Cuts the Civil Rights Act and Oklahoma in Half. The editors selected an even better title: "Justice Gorsuch's Legal Philosophy Has a Precedent Problem How should a textualist deal with bad case law?"
Here is the introduction:
Justice Neil Gorsuch is a proud textualist. According to this approach, what Congress intended, or expected, when it passed a law doesn't matter. What matters are the words printed on paper. In practice, Justice Gorsuch will strictly follow the text of statutes, no matter what result it yields. Last month, he decided that the 1964 Civil Rights Act has always prohibited LGBTQ discrimination. Everyone simply missed it for half a century. And at the close of the Court's term, he determined that an 1833 treaty between the federal government and American Indian tribes was never formally rescinded. Who knew that eastern Oklahoma has been Indian Country all along?
In both cases, Justice Gorsuch insisted he was sticking to the text, the whole text, and nothing but the text. Alas, he wasn't. His interpretation was shaded by the work of justices who had not been so careful about text. And in both cases, Justice Gorsuch failed to acknowledge that the Court's precedents were inconsistent with textualism. In doing so, he inadvertently undermined textualism's justi cation. One can't profess to follow the original meaning of a text while in fact following precedents that ignored that meaning. Going forward, he should criticize prior decisions that failed to take text seriously, and either reluctantly follow them, or formally abandon them.
And the conclusion:
Textualism, like originalism, must start from the blank slate of a statute, without regard to how the Court has interpreted that statute in the past. Justice Gorsuch cannot begin from the 50-yard line. He must start from his own end zone. In its present form, Justice Gorsuch's textualism is far too fragmented to form a coherent jurisprudence. In the future, he must grapple with the interplay between stare decisis and textualism. When feasible, he should choose Door No. 2, and reject precedents that ignored textualism. If that approach is not viable, he should stay behind Door No. 1, and at least cast doubt on why that precedent is flawed, but follow it anyway. But Door No. 3 is misleading. It preaches textualism, but practices precedentialism. His approach, in the long run, will serve only to undermine textualism. If Justice Gorsuch wants to move the law away from nebulous, flimsy reasoning toward more textualist, neutral principles, he must account for both text and precedent.
I hope Justice Gorsuch addresses the important relationship between textualism and precedent in future cases.