Friday, June 19, 2020

Gorsuch's Scalian Textualism Supports LGBT Rights--and the End of the Conservative Legal Movement

This week, the U.S. Supreme Court announced its decision in Bostock v. Clayton County, holding that the Civil Rights Act of 1964 forbids employment discrimination against homosexuals and transgender people, because Title VII of that Act makes it unlawful "to discriminate against any individual . . . because of . . . sex."

The big surprise is that the opinion of the majority (six justices) is written by Neil Gorsuch, Donald Trump's first Supreme Court appointee, who filled the vacancy created by Antonin Scalia's death, with the expectation that he would be a conservative justice in the tradition of Scalia.  Gorsuch does indeed apply Scalia's textualist approach to the Constitution in support of his decision, but the three dissenters (Alito, Thomas, and Kavanaugh) complain that the result in this case is just the opposite of what Scalia would have done.

This raises at least three big questions.  Does this destroy any possibility for Trump's reelection?  Does this mean the end of the conservative legal movement that supported Gorsuch?  And does this cast doubt on the intellectual coherence of Scalia's textualist jurisprudence?

Trump could not have been elected without the votes of conservative Christians--evangelicals and conservative Catholics--who were disgusted by Trump's shameless immorality and lack of any religious convictions, but who voted for him because he promised to appoint conservative constitutionalists to the Supreme Court who would uphold conservative Christian values. Preeminently, this meant legal decisions that would support the pro-life attempt to overturn Roe v. Wade, the protection of religious liberty, and slowing or reversing the expansion of LGBT rights.  It was assumed that this would be achieved by judges like Scalia who insisted that the proper role of judges is not to make the law but to interpret and apply the law as written, so that judges cannot act as legislators who change the law to advance their policy preferences.

In February of 2016, Scalia died.  A few weeks later, President Barack Obama nominated Merrick Garland to fill Scalia's vacancy on the Court.  This created a rare situation in which a Democrat president in his last year of office was nominating someone to the Supreme Court, who would have to be approved by a Senate controlled by the Republicans, and who would be replacing a conservative Republican appointed judge, so that the majority of the Supreme Court justices would swing from Republican appointees to Democrat appointees.  To prevent this from happening, Senate Majority Leader Mitch McConnell refused to even allow the Senate to consider Garland's nomination, arguing that this was inappropriate in a presidential election year, and that the new President should nominate someone in 2017.

During his campaign in 2016, Trump promised that all of his judicial appointments would come from a list of people recommended by the Federalist Society, the leading organization in the conservative legal movement devoted to packing the judicial system with conservative judges.  Conservatives claim to be constitutionalists and defenders of the rule of law who think judges should adhere to the original meaning of the Constitution and the clear textual meaning of the laws, in contrast to liberal judges who impose their liberal preferences in acting as legislators rather than judges.  Scalia was a hero of the conservative legal movement, and Trump promised that his first Supreme Court appointment would be someone like Scalia.  Religious conservatives were attracted by this because they assumed that conservative judges would favor conservative religious values.  For many religious conservatives, they could overlook all of Trump's obvious flaws and vote for him only because his judicial appointments would be good.

Trump's nomination of Gorsuch within the first weeks of his presidential term, and his later nomination of Brett Kavanaugh (to replace Antony Kennedy), seemed to satisfy the hopes of the religious conservatives that the Supreme Court would swing to their side.  No matter what Trump did to disappoint them, the religious conservatives could say: But there's Gorsuch!  But there's Kavanaugh!

What now?  Kavanaugh voted their way in Bostock.  But not Gorsuch.  And even more disturbing for them is that Gorsuch justified his vote by applying Scalia's textualist approach to the law.  If only a few religious conservatives decide that their bargain with Trump and the conservative legal movement has failed, and so they should not vote for Trump in November, that would probably cost Trump enough votes to lose.

That Gorsuch's opinion in Bostock really does mean that the bargain has failed was loudly and prominently declared by Senator Josh Hawley on the floor of the Senate this past week.  Hawley is the junior Senator from Missouri, who defeated Democrat Senator Claire McCaskill in 2018.  He's a lawyer who led the Federalist Society chapter at Yale Law School, and he's a fervent Christian conservative.  At age 40, he's the youngest person in the Senate.

In his speech, he said that the Bostock decision is "truly a historic piece of legislation" that changes the text of the 1964 Civil Rights Act to expand the protection from unfair sex discrimination in employment to include protection for gay men, lesbians, and transgender people.  But, of course, that's the problem--its a piece of legislation by judges who have acted as legislators in changing the civil rights laws rather than interpreting and applying the existing texts of the law.  This is not what he and other religious conservatives bargained for in supporting the conservative legal movement, because legal conservatives like Gorsuch were supposed to stay within the text of the law--and leave the lawmaking to the true elected legislators--in a manner that would protect the conservative values of religious believers.  In this case, religious conservatives would have expected Gorsuch to join Alito, Thomas, and Kavanaugh in resisting the demand of LGBT ideologues that judges should rewrite the laws to expand LGBT rights.

The problem, however, as Hawley indicates, is that judges like Gorsuch "invoke 'textualism' and 'originalism' in order to reach their preferred outcome."  Here Hawley seems to agree with Justice Alito that Gorsuch's textualism is fraudulent.  In his dissenting opinion in the Bostock decision, Alito warns that Gorsuch's opinion is legislation disguised as a judicial opinion interpreting a statute, and therefore it is not really anything like Scalia's textualism.
"The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled.  The Court's opinion is like a pirate ship.  It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated--the theory that courts should 'update' old statutes so that they better reflect the current values of society" (3). 
Gorsuch emphatically asserts that he is following Scalia's textualist approach in grounding his legal interpretation in the text of the law and nothing else.  "When the express terms of a statute give us one answer and extratextual considerations suggest another, it's no contest.  Only the written word is the law, and all persons are entitled to its benefit" (2).

Here's the crucial text from Title VII of the Civil Rights Act of 1964:
"It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."
In the three cases before the Court, two individuals were allegedly fired by their employers for being homosexuals; and the third was fired when, having lived as a man, and after working for her employer for six years, she announced that she would henceforth be living as a woman.  All three argued that their firings violated Title VII declaration that an employer may not "discriminate against any individual . . . because of . . . sex."

Title VII never explicitly mentions homosexual orientation or transgender identity as illegal grounds for discrimination in employment.  There have been many attempts in the Congress to amend Title VII to define sex discrimination to include both "sexual orientation" and "gender identity."  Last year, the House of Representatives passed a bill to do this, but it has been stalled in the Senate.  The three dissenters in Bostock cite this as evidence that the text of Title VII as it now stands does not include homosexuality and transgender identity as prohibited grounds for employment discrimination, and therefore those like the plaintiffs in Bostock who want to expand Title VII's protections should have to wait until the law is changed by the legislature.

Gorsuch's argument, however, is that the present language of Title VII implicitly protects the three plaintiffs from discrimination, because when employers fire employees for being homosexual or transgender, these employers are discriminating against these individual because of sex.  If an employer would never think of firing Sally because she has a romantic interest in men, but then he fires John when he shows a romantic interest in men, that employer has treated the man differently from the woman because of his sex, which is the language of Title VII for illegal discrimination in employment.  A similar kind of reasoning would show that firing a transgender employee is forbidden by Title VII: if an employer fires his transgender female employee because he knows she was born a biological male, then he is firing her because of her sex.

Remarkably, Justice Kavanaugh concedes that "as a very literal matter," Justice Gorsuch's interpretation of the legal text is correct! But Kavanaugh argues that as a sound principle of judicial interpretation, the "ordinary meaning" of a legal phrase is to be preferred over the "literal" meaning.  So while Gorsuch is right that the literal meaning of discrimination because of sex includes discrimination against homosexuals and transgender people, the ordinary meaning accepted by reasonable people--legislators, judges, and citizens--is that prohibiting discrimination because of sex means equal treatment for men and women, which does not require prohibiting discrimination based on sexual orientation or gender identity.

Kavanaugh says that Scalia would not have accepted Gorsuch's literal interpretation of "because of sex."  After all, Scalia himself once said that "the good textualist is not a literalist" (6).  And yet Gorsuch relies heavily on a crucial interpretation of Title VII by Scalia in his opinion, writing for a unanimous court, in Oncale v. Sundowner Offshore Services (1998).  Joseph Oncale alleged that he was forced to quit his job working on an oil platform in the Gulf of Mexica because he had been sexually harassed by other men in the crew.  Oncale said that he would not have been harassed by these men if he had been a female, and therefore he had been discriminated against because of his sex, which was prohibited by the language of Title VII.

When the Congress wrote and approved Title VII in 1964, probably no one anticipated that the language of the text would prohibit the sexual harassment of men by other men in the workplace.  This was not part of Congress's original intent.  But still, Scalia concluded, if the literal interpretation of Title VII protected men from such harassment, then this was part of the original meaning of the statute, even if that meaning was not understood in 1964.

Scalia wrote:
"We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII.  As some courts have observed male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII.  But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.  Title VII prohibits 'discriminat[ion] . . . because of . . . sex' in the 'terms' or 'conditions' of employment.  Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements."
The same literal reading of "because of sex" applied here, Gorsuch observes, also applies to employment discrimination based on the homosexuality or transgender status of employees.

This is what Walter Olson at the Cato Institute calls a "surprise plain meaning" reading of the law.  Sometimes a strict textualist reading of the law can turn up a meaning that surprises the jurisprudential textualists, a meaning that might even contradict the conservative policy preferences of the textualists.

But isn't that good for textualism, because it refutes the claim of textualism's critics that textualists use the supposed objectivity of textualism to read their own conservative ideology into the text of the law?  If textualism reveals in an unbiased way what the law really says, then one should expect that what is found in the law will sometimes surprise or even disappoint the conservative textualists.

That is the case with Gorsuch's reading of Title VII as expanding LGBT rights, against the desire of religious conservatives that those rights should be narrowed.  Similarly, as I have argued in a previous post, one can make a good textualist argument for concluding that the original meaning of the 14th Amendment supports same-sex marriage, which would provide a textualist justification for Justice Kennedy's opinion in Obergefell.  That argument has been well made by William Eskridge and Steven Calabresi in their amici curiae brief in the Obergefell case.  Eskridge and Andrew Koppelman made a similar textualist argument supporting Gorsuch's opinion in Bostock in their amici curiae brief in that case.

I doubt, however, that conservative Christians like Josh Hawley will ever be able to accept this kind of textualist jurisprudence when it supports decisions like those in Bostock and Obergefell that violate their Christian values.  And if they desert Trump in November because they think their bargain with Trump and the conservative legal movement has failed them, this could contribute to an electoral disaster for Trump and the Republican Party.

There is another fundamental problem here that Senator Hawley identifies.  He asks why most of the laws in the United States are made by unelected bureaucrats and courts rather than by the Congress, and he answers: "Because this body doesn't want to make law."  Congress has refused to claim and exercise its lawmaking authority, and consequently they have allowed the president, the administrative agencies, and the courts to make most of the laws.

And indeed here--in the interpretation of Title VII--the Congress has the power to overturn or revise the Supreme Court's interpretation of the law in Bostock by legislating a congressional interpretation of Title VII.  Congress has all the constitutional powers to be the supreme branch of the national government, but it often refuses to exercise those powers.

Wednesday, June 10, 2020

The Evolutionary Psychology of Magna Carta and the Rule of Law

                                                  The Original Latin Text of Magna Carta

In a few days, we will reach the anniversary of Magna Carta, which was a charter of rights agreed to by King John of England at Runnymede meadows, near Windsor, about 20 miles west of central London, on June 15, 1215.  For over 800 years, Magna Carta has symbolized the idea of the rule of law--the idea that freedom from unjustified force is secured under the rule of law when no person is above the law, and all people are equal before the law in the legal enforcement of their individual rights.

The power of this idea is illustrated now by the massive protests against police brutality and racial injustice sparked by the killing of George Floyd by a Minneapolis police officer on May 25.  The video of the police officer--Derek Chauvin--pressing his knee into the neck of Floyd until he died from suffocation was seen by billions of people around the world as an unjust violation of the rule of law.  This officer seemed to act as if he was not subject to the laws against violent assault and murder, and Floyd was not equal to all other citizens in having a right to life.  The many proposals for reforming police departments are designed to insure that police are under the rule of law, so that they will be punished for infringing on the rights to life, liberty, and property without due process of law.

The protests against the killing of Floyd have appeared in over a thousand locations in all 50 states of the U.S. and in over 40 other countries, including all of the European countries and around the world from Argentina and Brazil to Australia, New Zealand, and Hong Kong.  This shows a universal moral sentiment of disgust elicited by the violation of the principle of the rule of law, which suggests that this is rooted in evolved human nature.

To see Magna Carta as the original source for this idea of the rule of law has been challenged over the past one hundred years by some historians of law who ridicule this as a "myth" contrary to the historical reality of Magna Carta, which was nothing more than a failed attempt to achieve a peace treaty between King John and some rebellious barons trying to secure their baronial privileges.  The "myth of Magna Carta" was invented, the historians say, by Sir Edward Coke and other opponents of monarchic absolutism in seventeenth century England, because the idea that Magna Carta was part of an "ancient constitution" protecting the liberties of the people from monarchic tyranny was a good rhetorical weapon to use against the Stuart royalists (Herzog 2018; Jenks 1904; Pocock 1957).

But if one looks at the evolutionary history of Magna Carta--as a work of natural law, customary law, and statutory law--one can see that in advancing the aristocratic interests of their class in 1215, the English barons made an argument--that monarchic political authority could be constrained by a rule of law that protects the liberty of subjects--that could be expanded over the subsequent 800 years on a wider scale to secure the equal liberty of all individuals.  Although the "myth of Magna Carta" is not literally true, it is symbolically true as an evolutionary development of the inherent potential of Magna Carta for adapting to changing circumstances.

King John was a wretched monarch whose oppressive rule alienated many of his subjects, including his Barons, who were given their titles and their large tracts of land by the King.  Many of the Barons were angry about the King's endless increases in royal taxes and required payments and by the unjust arbitrariness of the King's courts.

Some of the Barons became so rebellious that they initiated a civil war to overthrow the King, and some tried to have him assassinated.  This was a common pattern in English history.  Almost every English King after William the Conqueror had faced a revolt by the nobility.  Failing to defeat the rebels in war, and fearing that he would be killed if he did not yield to their demands, King John was forced to meet the baronial leaders of the revolt at Runnymede and agree to affix his royal seal to Magna Carta, which declared that the King would secure a long list of "ancient liberties" for "all free men" in his kingdom.  Not trusting the King to keep his word, the Barons added a security clause at the end of the document, which provided for the election of twenty-five barons who would punish the King for any violations of the agreement by taking the King's castles, lands, and possessions.

Here we see the evolutionary origin of individual liberty, which always appears first as a by-product of a struggle for power among elite groups rather than as the result of any deliberate aim to advance liberty.  As I have suggested in some previous posts (here, here, here, here, and here), the Lockean evolutionary history of liberty is driven by the violent and non-violent resistance to tyranny, which Locke identified as the "executive power of the law of nature," and which includes civil war and killing kings.  The police protests show that same natural human propensity to resist oppressive injustice.

King John appealed to Pope Innocent III to annul Magna Carta by finding it a "shameful and demeaning agreement, forced upon the King by violence and fear."  The Pope did that, and England was thrown into what was known as the First Barons' War.  The Barons offered the crown of England to Prince Louis of France, who intervened in the civil war on the side of the Barons.  King John died in 1216 from an illness.  When the civil war ended in 1217, Magna Carta was reissued on behalf of Henry III, John's young son.  This began a long history in which Magna Carta was confirmed by later kings and revised by statutes of Parliament.

By the conventional numbering of the clauses, the original version of Magna Carta from 1215 has 63 chapters, while the version from 1225 has 37 chapters.  Most of those clauses assign rights or liberties to specified classes of people.  Six social classes are expressly mentioned: earls and barons, knights, "free men" (liberi homines), clerics, merchants, and villeins.  As Jenks and other historians have observed, nothing is said about the rights of "the people," which might seem to deny the mythic view of Magna Carta as securing the individual rights of the people.  Rather, most of the rights here are assigned to the aristocratic classes.

Most of the English people in 1215 were villeins (or serfs) who were tied to the manor of a lord, who did the servile work of the manor, and who were held by the lord as his property.  The "free men" are distinguished in Magna Carta from the villeins, and also from earls, barons, knights, clerics, and merchants.  "Free men" seem to be aristocratic landowners.

So while most of Magna Carta was written by Barons to protect their own privileges, there is some extension of rights to non-baronial classes, including the tenants of the Barons.  Chapter 60 declares: "all those customs and franchises mentioned above which we have conceded in our kingdom, and which are to be fulfilled, as far as pertains to us, in respect to our men; all men of our kingdom as well as clergy as laymen, shall observe as far as pertains to them, in respect of their men."

The two passages that were most important for Edward Coke's claim of an "ancient constitution" limiting the King's powers and protecting the rights of the people were chapters 12 and 39.  Chapter 12 reads: "No scutage or aid shall be imposed in our kingdom except by the common council of our kingdom, except for the ransoming of our body, for the making of our oldest son a knight, and for once marrying our oldest daughter, and for these purposes it shall be only a reasonable aid."  "Scutage" was a money payment in lieu of knight's service.  An "aid" was a grant by the tenant to his lord in times of distress.

Coke argued that this required parliamentary consent to royal taxation.  Some historians say this was a misinterpretation because there was no Parliament in 1215.  One could argue, however, that "the common council of our kingdom"--the "Great Council" of advisors to the King--was the predecessor of what became Parliament later in the 13th century.

The second important passage for Coke was chapter 39: "No free man [liber homo] shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers [nisi per legale judicium parium] or by the law of the land [per legem terrae]."

This is often said to be the first statement of the rights of the people to trial by jury, due process of law, habeas corpus, and the equal protection of the laws--traditional common law rights found in the amendments to the U.S. Constitution.

Some historians have made three arguments for why this is an unhistorical misinterpretation of this passage.  The words "no free man" implies a limitation to a small class of people.  The words "law of the land" are too vague to convey the modern idea of "due process of law."  And "legal judgment of his peers" probably meant not trial by jury but trial of barons by persons of equal rank rather than the king's judges who were of lower rank.

But while this might be true for the original meaning of chapter 39 in 1215, this ignores the fact that Coke's interpretation of this chapter was formulated as early as the 14th century in parliamentary statute.  Between 1331 and 1368, Parliament passed six statutes interpreting "no free man" to mean "no man" or "no man of whatever estate or condition he may be," interpreting "law of the land" to mean "due process of law." and interpreting "legal judgment of his peers" to mean trial by jury (Holt 2015, 39-40).

Here we see how Magna Carta fits into the evolutionary history of individual liberty under the rule of law as shaped by human nature, human custom, and human judgment, and as ultimately rooted in the evolved human instinct for resisting arbitrary absolute power over one's life, liberty, and property.


Herzog, Tamar. 2018. A Short History of European Law: The Last Two and a Half Millennia. Cambridge, MA: Harvard University Press.

Holt, J.C. 2015. Magna Carta.  Third edition. Cambridge: Cambridge University Press.

Jenks, Edward. 1904. "They Myth of Magna Carta." Independent Review 4: 260-273.

Pocock, J. G. A. 1957. The Ancient Constitution and the Feudal Law. Cambridge: Cambridge University Press.