When Roberts has an ideological or jurisprudential position to impress into law, he is likely to wait for the time at which it is politically palatable.
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).
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?”
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 then—poof!—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.”