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The Mindlessness of Bostock

In Bostock v. Clayton County, as everyone by now knows, the Supreme Court ruled that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating based on sexual orientation or transgender status. Dissenting, Justice Samuel Alito pointedly accused the Court of legislating.

Alito was too kind. The Court did not merely transfer the legislative power from Congress, where the Constitution places it, to the judiciary. Rather, the Court moved the legislative power beyond the realm of mindful decision-making altogether. If we assume that Justice Neil Gorsuch was sincere in what he wrote for the Court (and I do), our governing law becomes mindless in a quite literal sense.

Ironically, this descent into mindlessness is the consequence of a prima facie admirable but seriously misconceived commitment to rule of law—a misconception closely associated with the “textualism” advocated by conservative champions like Justice Antonin Scalia and followers like Justice Gorsuch. In that sense, Bostock might be taken as a sort of reductio ad absurdum of the textualism that many legal conservatives have ill-advisedly embraced for a generation or more.

Law without Mind

It is basic civics that the Constitution allocates different kinds of authority to the different branches of the national government. Legislative authority is assigned to Congress. Of course, it is also common knowledge that at least since the New Deal, the actual operations of government have a tenuous relation at best to the constitutional allocation of powers. But underlying both the classical model and the revisionist realities lies a more elementary and shared assumption: law should be the product of mindful decision-making by someone.

Thus, in the classical model, if a perceived problem is presented (like discrimination based on race, say, or sex, or sexual orientation), the men and women who constitute Congress would deliberate and debate and then decide what to do about the problem. They would embody their decision in a law—a statute. Or, in the revised modern reality, the decision-maker might be the men and women in an administrative agency, who would consider an issue, make a decision, and implement their decision in a regulation. Either way, presumptively mindful human beings would be deliberating about an issue, deciding what to do about it, and then expressing that decision in law.

Or suppose, as critics often charge, that the courts interpret a statute (or constitutional provision) in a controversial way that was likely not contemplated by the men and women who enacted the relevant law. In such cases, the suspicion arises that the court itself, under the guise of “interpretation,” has assumed de facto legislative authority. This of course is what Alito said the Supreme Court did in Bostock. And if this happens, the court can plausibly be accused of legislating. But although such judicial legislation would depart from the constitutional scheme of allocated authority, at least the decision and hence the law would still be the product of mindful agents (the judge, or the Justices) who think about an issue, decide what to do about it, and then express their decision in “law.”

According to Justice Gorsuch, though, none of these scenarios was what led to the new (or, by the Court’s reasoning, old but previously undiscovered) prohibition against sexual orientation discrimination. The Court admits that the Congress that enacted Title VII never intended that the law would contain any such prohibition. We might go further and confidently conjecture that in 1964, when psychologists still classified homosexuality as a psychological disorder, Congress would have been appalled by the suggestion that it had done any such thing. In the ensuing years, attitudes changed, of course, psychologists revised their thinking, and proposals were often made to prohibit sexual orientation discrimination. Some of these proposals (like the pending Equality Act) received considerable attention, in and out of Congress. And yet Congress repeatedly chose not to enact any such prohibition.

Sometimes, to be sure, Congress will exercise its legislative authority by adopting a legal category that will cover instances that Congress did not imagine, and that may not even have existed at the time of enactment. Suppose, for example, that Congress prohibits the sale of some defined category of “poisons.” The prohibition will apply to poisonous substances that members of Congress may never have heard of, and that may not even have been invented when the prohibition was adopted. But Bostock presents no such situation. Sexual orientation discrimination was common enough in 1964—probably more common then than it is now—and it was a familiar issue in later years when Congress again and again rejected proposals to prohibit it.

As of last month, in short, Congress had been presented with the question, had thought about it—and had decided not to adopt any prohibition. So the prohibition recognized in Bostock surely did not come from any mindful deliberation and decision by Congress.

Does it then at least reflect mindful deliberation and a decision by the Justices on the basic question—namely, whether the law should prohibit sexual orientation discrimination? Again, cynics may suggest that this is what happened. But Justice Gorsuch rejects any such description. According to Gorsuch, he and his colleagues are not themselves deciding whether sexual orientation should be protected against discrimination. Not at all. They are merely saying what “the law” is.

Whether federal law should prohibit sexual orientation discrimination has been a much-debated issue in our society. Now we have such a prohibition. But not because Congress deliberated and then decided to adopt it. And not (at least according to Gorsuch) because the Justices deliberated and decided to adopt it. What we have, it seems, is a highly consequential and controversial prohibition that is not the expression of a mindful decision by anyone.

Rather, the prohibition is the product of the words enacted by Congress—Congress’s own contrary intentions and understandings of those words notwithstanding. This is the conclusion that “textualism” can lead to.

This approach to interpretation rests upon a theory of how language works that has been sharply criticized by literary theorists like Walter Benn Michaels, Steven Knapp, and Stanley Fish, and also by (conservative) legal scholars like Larry Alexander and Richard Kay. I happen to think the criticisms are cogent, but I don’t intend to press those criticisms here. Rather, I am trying to underscore one disturbing but it seems mostly unnoticed feature of this approach. Once again, textualism makes the content of our law the product not of mindful decision-making, but of a sort of semantic accident. In this approach, the legislators, supposedly endowed by the Constitution with the power to make law, can only cast their semantic bread on the waters and then wait to see what those words turn out to mean (which might be something utterly different from what the legislators wanted and intended the words to mean).

Among other things, Bostock may provoke legal conservatives to appreciate the implicit mindlessness in their long-standing but misguided attachment to “textualism.”

So, why would sober (and conservative) jurists and legal scholars be drawn to a jurisprudential approach having such extraordinary consequences?

Textualism and the Rule of Law

The answer, it seems, is that textualists are attracted to the ideal of rule of law. We are supposed to be governed by law, they think, not by men (or men and women). This is a venerable and worthy ideal—one that has been embraced and developed by distinguished thinkers and jurists. But does it mean what the contemporary textualists think it means?

The ideal might be understood in contrast to what it opposes—ad hoc governance by kings or despots (benevolent or otherwise) who rule by fiat. “Off with his head” or “Because I so ordered.” One classic exposition—Lon Fuller’s The Morality of Law—presents the ideal as arising in just this way. In Fuller’s presentation, a well-meaning ruler, Rex, strives to govern justly albeit in ad hoc fashion. But Rex’s subjects find this kind of governance intolerable, because they cannot know what the governing law will be, cannot act in accordance with that law, cannot plan their lives with confidence about what will or will not be deemed illegal. Out of this frustration, Fuller elaborates a set of “rule of law” criteria. Rex should govern through general rules, declared publicly and in advance, so that subjects can know what is and isn’t allowed. And Rex himself will be bound by his own rules: that fact will put some constraints on what he is inclined to prohibit or allow.

The basic ideas are familiar, and immensely valuable. But to say that Rex must govern by rule rather than fiat is simply not to say, bizarrely, that Rex’s rules need not mean what he thinks they mean—that they may mean something completely different from what he intended them to mean. No such separation of mind from law is part of the “rule of law” ideal.

Suppose some theorist were to propose such a notion to Rex. “Rex, you are the king, and you get to make the rules. Or, more precisely, you get to make the words of what we will call ‘law.’ But you don’t get to say what those words mean. Someone else—a judge, probably—gets do that.” How might Rex respond to this proposal?

He might well ask, “But if the judge gets to say what the words mean, whether or not that’s what I intended, . . . won’t the judge in reality be the king?” It is a good question, but suppose our theorist, well versed in textualist theory, replies, “No, the judge won’t be king, because he will be interpreting the words not according to what you intended but also not according to his own preferences. He will give the words their ‘objective’ meaning . . . as determined by dictionaries, linguistic usages, and so forth.” And Rex wonderingly responds: “So, let me get this straight. You’re saying that the substantive content of our law—the content according to which people will or won’t be sent to jail or required to pay damages—will ultimately be determined . . . not by me, . . . and not by the judge, but rather by . . . dictionaries? Are you serious?”

Surprise, Surprise!

But the problem is not just that the textualist divorce of legal meaning from mindful deliberation and decision-making is not required by the rule of law ideal. In fact, the approach is itself in stark violation of that ideal. The central point of rule of law, once again, is to avoid nasty surprises—or, more precisely, to make the content of the law knowable and predictable so that subjects can regulate their own lives accordingly. But textualism, by creating the possibility of legal meanings and prohibitions that no one intended or contemplated, creates the risk of exactly that kind of nasty surprise. (To be sure, the surprise will be distributed more equally—to subjects and legislators alike. Is that any consolation?)

Bostock provides an almost perfect example of just this risk. Until just recently, employers would have supposed—and did suppose—that there was no federal legal prohibition on taking sexual orientation or transgender status into account in making decisions to hire or promote. That supposition was more securely grounded than many others that employers or the rest of us have to make. Thus, informed employers would have believed—correctly—that Congress never intended Title VII to apply to sexual orientation. They would have known that this commonsensical interpretation had repeatedly been affirmed by Courts of Appeals. They would also have known that Congress had repeatedly rejected proposals to adopt such a prohibition. Not only in theory but in practice, not many legal questions have as clear an answer as this one did.

And thenpoof!—a prohibition that had not previously existed suddenly did exist! Or, rather, that prohibition existed all along, ever since 1964; it is just that until last month no one knew the prohibition existed. So, this isn’t a case in which Congress enacts a new prohibition, which subjects can then read and adjust to. Rather, employment decisions going back years, seemingly perfectly legal at the time, suddenly became retroactively illegal; and the employers who made those seemingly legal but now illegal decisions all-at-once became liable for potentially massive damages and related remedies.

Is it possible to imagine a more blatant violation of “rule of law” than this? If the decision were not so consequential, it would be almost comical.

But let us conclude on a more cheerful note and look for the possible good in the decision. Among other things, Bostock may provoke legal conservatives to appreciate the implicit mindlessness in their long-standing but misguided attachment to “textualism.”

Reader Discussion

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on July 09, 2020 at 08:23:28 am

"Textualism Sexualism!"
Baloney!
It's not textualism at all.
While a self-serving president might conclude that his presidency "depends on what the meaning of 'is' is," to ANY unbiased judge "sex" means "sex" as a textual matter, and Clinton "did...have sex with that woman..."

It's literary license, and Gorsuch just made it up (rather creatively, I think) to satisfy his personal (I would argue, Episcopalian) humanism bias.
Just like Douglas, Warren, Brennan, Breyer and Ginsburg.

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paladin
on July 09, 2020 at 09:46:47 am

This essay and yesterday's essay written by Hadley Arkes, "Defending Religious Liberty Without the Constitution", brought to mind an insight of then-Cardinal Ratzinger that "Pure objectivity is an absurd abstraction. It is not the uninvolved who comes to knowledge; rather, interest itself is a requirement for the possibility of coming to know.".

Years later, writing as Pope Benedict XVI, this man of faith extended the thought, concluding that "faith presupposes reason and perfects it, and reason, enlightened by faith, finds the strength to rise to knowledge of God ... ". ... Faith without reason ends in fideism but reason without faith ends in nihilism." Tracey Rowland's, "Ratzinger's Faith" outlines these ideas and others, constructing a skeleton around which to build an opposing position to Kantian "pure reason".

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Latecomer
on July 09, 2020 at 10:59:56 am

If one wishes "to build an opposing position to Kantian 'pure reason'" we must de-secularize the discussion and expand the discussion's scope beyond the reach of secular reason alone, faith in secular reason alone having proven to be a major historical error and the source of disintegrating pluralism and soul-crushing materialism rather than a progressive, unifying cure-all.
The Supreme Court's understanding of law is informed by and limited to the grasp of secular reason.

READ FULL COMMENT

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paladin
on July 09, 2020 at 10:39:14 am

With this kind of textualism, the redefinition of words [a technique commonly used in propaganda] will alter the meaning, scope and context of the law. While the word [Scriptura] is left in tact, the new definition will take the law beyond the original meaning of the word. Justice Gorsuch's "Lutheran" Sola Scripture purism made him blind for the fact that it turned him into an instrument in a propaganda campaign.

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Bert Schwitters
on July 10, 2020 at 08:00:35 am

Justice Gorsuch is using the dictionary definition AT THE TIME THE LAW WAS PASSED. Any kind of later propaganda campaign cannot change the meaning of the words when the law was passed.

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Devin Watkins
on July 09, 2020 at 11:03:48 am

Prof. Rowland also mentions that Cardinal Ratzinger and others who were present at Vatican II debates understood that "the Church was contending with not ... not so much poor philosophy but competing humanisms, competing visions of the meaning of human life and the nature of human dignity ...". The two essays under discussion, Hadley Arkes' and Steven Smith's, provide support for their point of view. ("Introduction" - "Ratzinger's Faith ..." Tracey Rowland)

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Latecomer
on July 09, 2020 at 11:54:58 am

My God! What is "this" textualism of which Mr Smith speaks. Clearly, this is not the textualism of Scalia but rather a "gorsuchized" textualism "flying under a Pirate Flag' as Justice Thomas (?) averred.
As I understand it, textualism was simply one tool in the jurists arsenal allowing him / her to determine the meaning of the law AT THE TIME of enactment AND employing another tool of originalists that recognizes (or supposes is now more accurate) the fixity of that law, the jurist is then able to consider and deliberate upon the validity of the law.

HOW does the gorsuchizing of the text, i/e, "sex" achieve that goal or fulfill the objectives of "stable meaning", stable law and fixity?
No, this is not "textualism" but "gorsuchism"
Under this interpretation, I shudder to imagine just what my marital relations have been for the last 40 years. What, pray tell, have my dear wife and I been involved in?
Ludicrous!
"Just ask Alice, when[gorsuch] is ten feet tall" (Apologies to The Jefferson Airplane)

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gabe
on July 10, 2020 at 08:02:23 am

Gorsuch defined "sex" as either male or female. Do you disagree?

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Devin Watkins
on July 10, 2020 at 10:15:25 am

Devin:

yes, I do disagree - not with the two classifications subsumed under the then contemporaneous dictionary definition BUT with the ADDITIONAL classification divined by gorsuchizing the text and thus expanding immeasurably the classification possibilities AND need I say the possibility for litigation.
Textualism, yes BUT a constrained one that also considers and properly ways both legislative intent (whenever readily discoverable) and public meaning.
Words are not "whatever i say they are" - "Go ask Alice when she is ten feet tall"

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gabe
on July 09, 2020 at 12:18:22 pm

Hey, what is going on here?
When clicking on "Read Full comment" one only gets another bit of text reading "Read Full comment" albeit it not in Bold text"
Same with the Arkes essay.

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gabe
on July 09, 2020 at 13:00:38 pm

I suppose that following "gorsuch textualism" some enterprising textualist will now contest the death penalty where the administration of certain drugs are injected into the blood of the criminal because COTUS proscribes "corruption of blood."
What other absurdities can we come up with?
Smith's assertion that recourse to dictionaries is invalid, even harmful would permit just such ludicrous outcomes and contrary to his assertion that law should be "fixed", his disdain for jurists attempting to find the original meaning via a textual analysis will yield, if not dictate, an absolute lack of fixity and stability in the law.

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gabe
on July 09, 2020 at 14:09:12 pm

In times like these in order to have a conversation to which another will listen it is necessary not to talk about the ground of meaning, the very thing we must talk about in order to have a conversation. That is the paradox of Arkes' point about the Supreme Court's ungrounded lawlessness and Ratzinger's point about nihilism.

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paladin
on July 09, 2020 at 14:43:58 pm

“Is it possible to imagine a more blatant violation of “rule of law” than this?”

It is not possible to imagine a more blatant violation of a “rule of law”, that professes to serve out of respect for the inherent Dignity of the human person, as a beloved son or daughter, than a rule of law, that justifies a blatant violation of that same equal but complementary Dignity of our beloved sons and daughters by justifying acts, that regardless of the actors or the actor’s desires, inclinations, including if the actors be a man or woman, united in marriage as husband and wife, demean the inherent Dignity of those very persons that rule of law claims to serve to protect.

Respect for the Sanctity of the marital act, which is Life-affirming and Life-sustaining, and can only be consummated between a man and woman, united in marriage as husband and wife, is not an act of sexual discrimination as marriage consists of both a man and a woman, united in marriage as husband and wife.

The question is, based on the Law Of Noncontradiction, how can acts that demean our inherent Dignity as beloved sons and daughters, brothers and sisters, husbands and wives, fathers and mothers, be acts that respect that same inherent Dignity, simultaneously?

If, in fact, it is the desire of our legislators to reorder persons according to sexual desire/inclination in order to justify the engaging in of certain sexual acts, how will the Court continue to secure and protect the inherent Right for any person, or group of persons who respect the Sanctity of the marital act, and The Sacrament of Holy Matrimony as well as The Sanctity of the essence of being in essence, a beloved son or daughter, brother or sister, husband or wife, father or mother to continue to do so?

Will The Supreme Court rule that those who respect The Sanctity of the marital act, and the Sanctity of the essence of being in essence a beloved son or daughter, brother or sister, husband or wife, father or mother, are engaging in unjust discrimination, even though to do so, would be a violation of what The Supreme Court now defines as “sex discrimination”?

Would it then become unlawful to have a generally applicable Code of Conduct, that prohibits the condoning or affirmation of any type of sexual conduct that violates the Sanctity of the marital act, based on the inherent Dignity of the human person as a beloved son or daughter, and how could such a Code of Conduct be considered discrimination on account of sex, when sexual conduct/desire/inclination is not a person?

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Nancy
on July 09, 2020 at 16:01:30 pm

https://originalismblog.typepad.com/the-originalism-blog/2020/07/intentionalist-and-textualist-critiques-of-bostock-v-clayton-countymichael-ramsey.html

For thought. Link also includes link to essay by Josh Blackmun and Randy Barnett of "gorsuchizing"

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gabe
on July 10, 2020 at 07:58:55 am

Your story of Rex’s reminds me of one of Coke in the Case of Prohibitions. Where King James I that "In cases where there is not express authority in law, the King may himself decide in his royal person; the Judges are but delegates of the King." Coke replied, "the King in his own person cannot adjudge any case, either criminal – as treason, felony etc, or [between] party and party; but this ought to be determined and adjudged in some court of justice, according to the Law and Custom of England". Coke stated that "The common law protecteth the King," to which King James I replied "The King protecteth the law, and not the law the King! The King maketh judges and bishops. If the judges interpret the laws themselves and suffer none else to interpret, they may easily make, of the laws, shipmen's hose!". Still Coke insisted that the King was subject to the law, and the common law "demanded mastery of an artificial reason ... which requires long study and experience, before that a man can attain to the cognizance of it." (Of which implying the King did not have.)

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Devin Watkins
on July 10, 2020 at 10:25:00 am

Devin and others who would defend the "gorsuch" version of textualism:

What say you of McGirt v Oklahoma wherein our textualist friends saw fit to disregard the express intent, legislation AND text of several Congressional Statutes either eliminating, limiting or reducing the extent of "Indian country" and determined that almost 19 million acres of Oklahoma is once again Indian reservations with the consequent effect that thousands of criminal prosecutions may now be subject to revision / dismissal, etc.
Hey, but what about "reliance interests" or on of the other devices that the Black Robes employ WHEN it suits their fancy.

Oddly, enough re: Washington State, I do support Indian Treaty rights for fishing, whaling, etc. Treaties trump statute provided that the treaties themselves have not been renegotiated or made dormant by other statutory provisions.
Will have to read the decision but first impression is questionable.

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gabe
on July 10, 2020 at 11:51:24 am

May have to put a pause on my McGirt comments now having read excerpts of Gorsuch's opinion. If his facts are correct regarding the limits of post Treaty Congressional statutes, then he may very well be correct. Treaties do trump statute especially if the ensuing statutes do not specifically limit the grants under the treaty.

However, my contention that the Black robes "deploy" rel;iance interests as it fits their preferences still obtains.

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gabe
on July 10, 2020 at 11:47:53 am

(don't see this one so post again)
Devin:

yes, I do disagree - not with the two classifications subsumed under the then contemporaneous dictionary definition BUT with the ADDITIONAL classification divined by gorsuchizing the text and thus expanding immeasurably the classification possibilities AND need I say the possibility for litigation.
Textualism, yes BUT a constrained one that also considers and properly ways both legislative intent (whenever readily discoverable) and public meaning.
Words are not "whatever i say they are" - "Go ask Alice when she is ten feet tall"

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gabe
on July 10, 2020 at 19:01:57 pm

One final comment on this essay.
Smith asserts that textualism would devolve into "mindlessness."
While I understand (and circumstantially agree with) his argument, what Smith actually shows is that ONLY the "gorsuchizing" of textualism may result in this and / or any jurist who limits him / her self to a dictionary when adjudicating a case or controversy.
In the present instance, it ought to be clear to any thinking individual that gorsuchizing the text of COTUS is not the product of a mindless review; rather, it is the product of an overly active, clever(as a pejorative) fetid imagination of mind requiring one to both corrupt public meaning, deny ACTUAL Congressional practice and construct an imaginary reality in which words may mean whatever we damn well want them to mean.
THIS IS NOT MINDLESS but all too calculating.

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gabe
on July 10, 2020 at 19:09:37 pm

Don't back down, Gabe. You were right the first time. Indian tribes are not "the reason God made Oklahoma." Nor is Gorsuch's special, personalized brand of textualism the one McGirt should have followed.

I follow a rule of thumb on SCOTUS decisions: Thomas' opinion is almost certainly the law and Sotomayor's is almost certainly wrong. Thomas, who is the Rock of Gibraltar on correct analysis, consistency, originalism and textualism (properly understood,) got it right.

The text is not always enough and was never intended as sola scriptura. (The Protestants made that horrible mistake in the 16th century.) It makes no sense to apply a test of literalism that flies in the face of reality. In Bostock, Gorsuch evaded both reality and literalism; in McGirt he was arguably a literalist at the cost of reality.

Further, I am very disturbed by the appearance that Gorsuch was influenced by the amicus brief filed on behalf of the tribes by a former 10th Circuit colleague. I am also very disturbed by Gorsuch's blithe dismissal in both Bostock and McGirt of what he disparagingly called a "parade of horribles" resulting from his bungled attempt at originalism. In both cases the "horribles" are almost certainly going to be real.

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paladin
on July 11, 2020 at 01:55:54 am

It should be expected that the use of particular techniques in order to achieve certain purposes will produce accompanying phenomena that are unavoidable and often undesirable. The technique used by Justice Gorsuch may produce such phenomena, although it is a matter of perspective whether these are desirable or not.

Justice Gorsuch, in Bostock proceeds through his textual analysis to arrive at the following rule:

If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.

Taking this as our starting point, we can construct the following thought experiment:

Assume that in 1967, or 1968, a female lifeguard at a swimming pool was fired from her job for refusing to wear a swim suit with a top, i.e. for appearing for work bare-breasted. How would a court in the late 1960s have ruled on her claim of a Title VII violation? Using Gorsuch's reasoning, and his assurance that he is merely applying the law as written, is there any reason to believe that the plaintiff in such a case would have prevailed? Or how about if a male, say a clerk in an insurance firm, regularly wandered into the Ladies' restroom? If his employment were terminated on this basis, how does one honestly think that a Civil Rights suit in 1969 would have ended? (There is no need to consider identifying as a female, the case would arise merely from the unexplained use of the ladies' facilities). In the former case, the difference in work attire for male and female lifeguards is determined by sex; in the latter case, the propriety of presence in the woman's rest room is also determined by sex. One is tempted to wonder how these scenarios might play out today, much less only a few years after the Civil Rights Act was passed.

It might be argued that any Court in the U.S. in the 1960's, including the Supreme Court, would have had Justice Gorsuch's insight, and ruled that, if changing the sex of the plaintiff would have removed the grounds for termination, then the plaintiff was discriminated against on the basis of sex and liability attached under Title VII. They may have; the conjecture certainly cannot be disproven. But the history of the cases decided in Bostock, the dissents in that case, and exemplar cases from the relevant period would suggest that such an outcome was unlikely. If Justice Gorsuch were to be presented with these hypotheticals, does he think his reasoning would have carried the day in 1968 or 1969? If not, how would explain the discrepancy?

The point of the hypothetical is not to argue that the decision in Bostock was right or wrong. It is to point out a phenomenon that arises from analyzing language that is more than a couple of decades old. That phenomenon is this: even if the dictionary meaning of words is understood, their application in everyday life depends on the context and on the environment. I shall not reprise the denote-connote point from the Espinoza thread, but that is in fact what occurs here. The denotation of the word "sex" in 1964 is likely exactly what Justice Gorsuch claims; however, the social and cultural millieu in which the word was used in 1968 would likely not support using it as Justice Gorsuch did. The social, political, and cultural contexts in which words are used constantly changes. When the effect and meaning of a particular word becomes part of stare decisis, those effects and meanings become relatively fixed, but the social, political and cultural contexts continue to change. An opportunistic Court may take advantage of a favorable zeitgeist to try and make some idea durable and relatively permanent by suddenly deciding that a previously fluid concept is now, and unknowingly always has been, part of the Constitution, or part of a law passed five and a half decades ago. The most obvious example is the cultural institution of marriage, but other things, e.g. the role of the family, the right of parents to direct their children's upbringing, the propriety of using race to decide public benefits etc. are subject to similar phenomena. The concept of using contemporary values to disregard the connotation of historically remote usages assumes a finality that is unjustified. Sandra Day O'Connor naively believed that affirmative action in education would be necessary for no more than 25 years or so, oblivious to the possibility of the unforeseen demands and social tensions that we experience today. The judicial decisions regarding busing of students in the 1970s are somehow now at odds with cultural and social forces demanding segregated college dorms, separate graduation ceremonies, and the like.

The process used by Justice Gorsuch isn't necessarily wrong or right. We should not be surprised, however if his reasoning should create new problems when the direction of wind changes.

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z9z99
on July 11, 2020 at 11:21:44 am

Z:
Well crafted and reasoned BUT.....
"The process used by Justice Gorsuch isn't necessarily wrong or right."

Let me take exception to that. It is wrong because while that process does explore and explain the "textual" meaning of the word "sex" AND recognizes both the mutability of word meaning AND contextual considerations, by accepting the validity and (presumed) force / applicability of those newly construed meanings it effectively a) disregards countering meanings currently held by many, if not the majority of citizens, b) assumes that the new meaning will not also be subject to change and c) most importantly arrogates to the Judicial the task of adjusting legislative norms and obligations, more properly the task of the Legislative to the Judicial.
Indeed, Gorsuch himself recognized the role of the Legislative in determining and imposing obligations in his opinion in McGirt v Oklahoma by averring that first the Legislative has the power to change or diminish reservation boundaries but had failed to do so explicitly and or sufficiently to provide the Court with sufficient statutory evidence to uphold the government's claim.
Madison also cautioned against the "changing meaning" of words and the effect upon the Constitution. He, wrongly, assumed that the Republic would be (or continue to be) populated with responsible leaders - those who would recognize and remain within their constitutional bounds.
The *process* that Gorsuch has deployed, in his false textualism, is an exemplar of *purposive* jurisprudence - one that seeks to a) justify a preordained conclusion or outcome via particular (or even various) interpretive methodologies and b) preclude Legislative considerations or induce certain Legislative considerations.
And all this, while within the same short time period giving nominal recognition to the role of the Legislative in another case.
How does one reconcile the two?
How does one believe the latter recognition of Legislative authority expressed in McGirth with the profound disregard for the same in Bostock? In both, he provides a concise historical survey of facts and meanings. Yet, in Bostock, we find no recognition that Congress a) has the power to impose these specific obligations and b) in McGirth he recognizes that the Congress has FAILED to impose certain obligations (actually restrictions in McGirth) while recognizing that the Congress has made some, albeit incomplete attempts to affect the boundaries at issue and thus, the Indians will prevail.
Why not the same consideration as to Congressional Power. Here, in Bostock, there is clear evidence that the Congress HAS considered such outcomes as he determines proper AND the Congress has repeatedly denied them.

Nope, this *process* is both purposive and corrosive of constitutional governance.

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gabe
on July 11, 2020 at 11:19:33 am

The failure of Bostock is Gorsuch's rejection of a textualist, "what you see is what you get," originalism (which some would call positivism) for post-structural historicism, which is relativist and which decodes the meaning of the word "sex" (written in 1964) in the context of the background and culture of 2020. That is neither textualism nor originalism as Scalia understood it, and it differs not a wit from the living constitutionalism which Scalia fought, which Justice Thomas has steadfastly opposed (and did in Bostock) and of which justice Gorsuch, before Bostock, was a soi-disant opponent.

In McGirt, Justice Gorsuch did a 'bait and switch" reversion to a form of literal textualism which defied reality as to meaning because it completely ignored the context, culture and background of the dispositive legal language at the time it was enacted. Based on the analytical hypocrisy of Bostock and McGirt one might reasonably conclude that Gorsuch is a faux-textualist/originalism and an exponent of living constitutionalism, yet one who would mask his subjectivism behind the cloak of textual originalism. And lurking behind both cases we can find indicia of subjectivism and bias.

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paladin
on July 11, 2020 at 12:27:31 pm

In short, it is not the damn job of the Judiciary to 'accommodate" public opinion, refined (in a Madisonian sense) of otherwise. It is the job of the Legislative to make such accommodations and to impose obligations as appropriate.
Of course, one can understand the Judicial's tendency to step into the breach, as it were, given that we DO NOT have a functioning Legislative; rather, it is populated by media enthralled demi-gods (self nominated) who furtively scurry from behind one pillar of obfuscation to another in a regrettably successful attempt to avoid offending any interest group.
Yet, the Judicial ought to avoid the "breach" lest they find themselves subject also to the same expressions of *concern* by these same interest groups or others.

DO THE DAMN LAW - NOT SOCIAL JUSTICE / RECONFIGURATION!
If this be originalism, then let us set it ablaze along with the tens of thousands of erudite legal dissertations that have inundated us these past 30 years.
Such legal dissertations amount to and are as substantive as the ashes resulting from the joyous bonfire to be had.

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gabe
on July 11, 2020 at 15:00:58 pm

I like that idea, a modern day, secular Savonarola denouncing the corruption of originalism, followed by a bonfire of the vanities which consumes in flames and reduces to ashes every law review article on originalism written after Raoul Berger's classic book, "Government by Judiciary," written in 1977" and Ed Meese's 1987 speech, “A Jurisprudence of Original Intention.”

Thirty-three years later and all the rest is mere academic vanity which has judicially weakened as it has intellectually complicated originalism, a common sense theory, and opened the door for invasion of the body snatchers, living constitutionalists, to the point that Justice Stevens used originalism to counter Justice Scalia's originalist interpretation of the Second Amendment and Justice Gorsuch used textualism to override Justice Thomas' originalism and re-define a universally, objectively, scientifically-defined word as meaning whatever one individually, subjectively intends it to mean. That makes originalism just more of the "whatever" culture, and if that's how it's to be applied, I say
a pox on it.

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paladin

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