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.

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