The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

New in the Atlantic: Justice Gorsuch's Half-Way Textualism Cuts the Civil Rights Act and Oklahoma in Half

Justice Gorsuch needs to account for both text and precedent when interpreting old statutes.


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term, he determined that an 1833 treaty between the federal government and American Indian tribes was never formally rescinded.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.


NEXT: Hacker Extradited from Cyprus, Partly for Breaking Into RipOffReport to Delete Complaints

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

Please to post comments

29 responses to “New in the Atlantic: Justice Gorsuch's Half-Way Textualism Cuts the Civil Rights Act and Oklahoma in Half

  1. “Who knew that eastern Oklahoma has been Indian Country all along?”

    The Muscogee knew.

    But I do appreciate you openly stating your belief that textualism should only result in decisions you like and that anything short of that is “half-way textualism.” I like when the veil falls away. Or just tossed on the ground.

    1. IANAL, but to even a lay person like me, I saw no evidence in the above post that the professor thinks textualism “should only result in decisions” he likes. So get your knee back in control and address the points made.

      1. He only complains about decisions he disagrees with
        IF one is truly a textualist, it would make sense that there are decisions that you dislike, but are the only reasonable conclusion when sticking to one’s principles

        Scalia was the king of forgetting textualism when it would lead to an inconvenient decision

        1. Scalia explicitly denied being a consistent originalist. Repeatedly! Called himself a ‘faint-hearted’ originalist. I don’t know why people keep talking about him if his jurisprudence was any guide to originalism, it was just something he used when he liked the result.

          Even in the cases, like Heller, where he claimed to be applying it, he wasn’t doing so with any rigor.

          1. Textualism isn’t originalism. Its a cousin at best.

          2. A quick Google search indicated that, in a 2013 interview, Scalia repudiated the “faint-hearted originalist” statement much quoted by many.


            1. So, at that point he started lying about what he was doing?

    2. Indeed. Per Blackman, any conservative can now come along and determine that all prior precedents are error and wrong and can be ignored because he (a guy, of course) has “determined that the “real” “textualist” result is whatever the new guy says it is. This is quite something, but it’s not law.

  2. “Who knew that eastern Oklahoma has been Indian Country all along?”

    Um, anybody who had read the treaty?

    I mean, seriously, we made a treaty with them, it claimed to be “perpetual”, it has never been formally rescinded, and treaties are the penultimate law of the land, second only to the Constitution.

    What part of that legitimately leaves room to toss that treaty? Are you going to seriously argue that the mere fact that the federal government has been bad about keeping its treaties with indians means such treaties aren’t enforcible? If the Supreme court isn’t going to uphold the law, what good is it?

    Bostock is different, it revolves around a disagreement about the meaning of a phrase. In the treaty case, nobody disagrees about what “perpetual” means, the terms of the treaty are clear, the only disagreement is over whether the government will be required to abide by them.

    1. Completely agree with Brett. Live by the textualism, die by the textualism.

      Not a great look.

      I even agree with Brett that Bostock is indeed more ambiguous as to how a textualist analysis must come out. This is nailed down. Your bluster does not change that.

      I continue to be interested in how much trouble the Federalist Society gets into; how many right-wing legal folks are going to pull a Blackman and demand less principle and more winciple.

      1. “winciple”

        Good word.

        1. TY. Would it at all surprise you to know that I thought of you in particular when I wrote it? 😛

    2. “Um, anybody who had read the treaty?”

      It was so obvious it took 120 years for anyone to assert it regarding prosecutions.

      1. Rather a commentary of how often we tend to glance at those treaties.

        1. . . . and on America’s vivid record with respect to treatment of native Americans and treaties in general.

          1. We were generally really diligent at formally abrogating those treaties and promises. But a few remained.

            Easy and low cost to give those few the formal lip service and seem like a better nation.

          2. A rare moment of agreement between us.

            1. One of the things Gorsuch shows in those Indian cases is how there really is a strong conservative argument about the rights of Indian tribes and their members. Obviously, liberals are sympathetic to them, given the history, but a number of conservatives are too, because conservatives are supposed to believe in contracts and holding people to their agreements. And in many of these cases, that’s what the Tribes are trying to do.

  3. So he is textualist when you agree with him , and not when you don’t

    Got it

    How do you keep up, tho, when your idiot hero in the white house changes his mind from moment to moment?
    Used to be ‘conservative meant not changing your mind every 5 minutes?

  4. From the Atlantic, “[Justice Gorsuch] did not approach Congress’s entire body of work as the Court has instructed.”

    As instructed?!?

    Since when does the Court instructed the Justices how to decide cases?

    AFAIK, a Justice could use a box of Fruit Loops if they wanted (and hopefully NOT!).

  5. This intramural grappling among conservatives* is entertaining but likely to become increasingly less consequential.

    * Except for Jim Jordan, who saw and knows nothing about any type of grappling

    1. Aren’t Republicans/Conservatives the first to establish a cancel culture, i.e. RINOs?

      1. Pretty strange cancel culture where the people you’d like to cancel are the ones in the driver’s seat.

  6. It seems to me that originalism and textualism are more articles of faith, often deployed as sound-bites to support a desired outcome, than a sound basis for interpreting text, whether constitutional or statutory, in a changing or unanticipated developing national consensus. I am reminded of similar notions in biblical interpretation where fundamentalists imagine the original meaning of the author or God speaking through the author based on some idea what the words would have meant to a hearer (or really, the speaker since the two are the same) at the time the words were written down or even became canonical (long after in the case of much of the Hebrew Bible). Many may claim fundamentalist interpretation of the Bible, but I dare say no one really practices such fundamentalism uninformed by subsequent authoritative interpretation and reason. As to a constitution, that may be a living constitution approach, but that is usually a label deployed in a pejorative sense by those with an agenda.

    Did Jefferson in writing the Declaration of Independence or those adopting it or those reading or hearing it really believe that men are created equal or that it applied to other than men? Not likely,
    (I presume that the reference there is all to white men, because if slaves or freed slaves had been asked if the statement included all men, black or white, they perhaps would have said that it did.) But the words mean something today because our national imagination and consensus have given it a more expansive meaning.

    And, in my mind, the answer is not to amend the Constitution to incorporate new meanings of words (or even subtle shifts or expansions of meanings). That is not practically possible. For example, I wonder that sufficient support could be obtained even today (given the persuasion of a large part of society) for a constitutional amendment to say specifically that the Fourteenth Amendment applies to public schools.

    A lot of our landmark cases that inform who we are today perhaps could not pass muster on a strict originalist view, which is a good reason for rejecting originalism as anything other than, perhaps, a starting point that then can consider the national trajectory (which would include precedent) and even permit overruling precedent (e.g., Plessy) where the ruling is not consistent with the national trajectory and consensus.

    1. “Did Jefferson in writing the Declaration of Independence or those adopting it or those reading or hearing it really believe that men are created equal or that it applied to other than men? Not likely”

      Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep for ever

      1. I think the way to view Jefferson is not that he believed that governments owed all men equal rights- he clearly did not believe that, and the DoI was propaganda to try and get people on the side of the Revolution- but that he and the other slaveholders were quite aware that slavery was a brutal, immoral business, but did it anyway because they made money and enjoyed life as slaveholders.

        Some people find sociopathic behavior thrilling. Doesn’t mean they don’t understand it is wrong. (Indeed, this is why sociopathy doesn’t get you an insanity defense.)

        1. I think he understood slavery to be evil, but lacked the strength of character to act on that understanding, knowing that doing it would ruin him financially. But we’re both mind reading here. At the least, he knew it was wrong, and did it anyway; There’s no good spin for that, just bad and worse.

  7. Thomas has had this problem for years. He ignores precedents all the time. And yet it only suddenly becomes a problem when Gorsuch supposedly does it and reaches a liberal result?

    1. The problem isn’t ignoring precedent, it is applying precedent while alleging you are not.