Law & the Courts

Trolling Is a Terrible Way to Write Laws

President Trump talks with Justice Gorsuch as he arrives to deliver his second State of the Union address on Capitol Hill in Washington, D.C., February 5, 2019. (Jonathan Ernst/Reuters)
Lessons for Congress from the Supreme Court’s decision in Bostock v. Clayton County

Today, the Supreme Court held in Bostock v. Clayton County that the words “discriminate against any individual . . . because of such individual’s . . . sex” in Title VII of the Civil Rights Act of 1964 mean discrimination based on sexual orientation or transgender status. There are many different angles here, some of which involve larger debates about the role of courts, how to read law, and what socially conservative voters expect from conservative judges. I’d instead like to focus on two lessons Congress can take from the decision.

Be Careful What You Troll For

The word “sex” was added to the Civil Rights Act in an amendment proposed by an opponent of the bill, 80-year-old Dixiecrat Howard Smith of Virginia, the chairman of the House Rules Committee:

Opponents of Smith’s amendment, led by Emanuel Celler, of Brooklyn, the seventy-five-year-old chairman of the House Judiciary Committee and the bill’s floor leader, regarded it as either a prank intended to expose the limits of liberal egalitarianism or a poison pill that would make the bill more difficult to pass in the House. . . . Smith made his motion in a jocular spirit. He read a letter from a constituent who asked him to offer an additional amendment addressing the demographic imbalance between men and women — a “grave injustice” that abrogated the right of every woman to have a husband of her own. [Celler] replied that he knew all about equality for women. He had been married for forty-nine years, he said, and he usually had the last two words: “Yes, dear.” The jokes continued until [Representative Martha] Griffiths got the floor. “If there had been any necessity to have pointed out that women were a second-class sex,” she said, “the laughter would have proved it.”

Most of the vocal opposition to Smith’s amendment came from liberal civil-rights supporters who feared that it would sink the bill, as a similar amendment had done in 1950, although a few determined women in the House backed it in earnest. There is some scholarly debate, which the majority opinion and the two dissents today noted, about exactly what to make of Smith’s intentions and those of others voting for his amendment. Much of the debate in Bostock surrounded the split between Justice Gorsuch, who read the statutory language in fairly literal terms without much regard to what it would have been understood to mean at the time it passed, and Justices Alito and Kavanaugh, who argued that the majority had rewritten the original publicly understood meaning of the law.

Regardless of which side of that debate you take, it is clear that a good deal of the responsibility for today’s decision — and for the years of litigation and division in the lower courts that it took to get here — lies at the feet of Howard Smith. Congress in 1964 could have bothered to explain better what it was doing, but because “sex” was a one-word amendment offered by a bitter opponent of the bill, there was not really a serious effort to examine what the word meant. As Gorsuch wrote, “Whatever his reasons, thanks to the broad language Representative Smith introduced, many, maybe most, applications of Title VII’s sex provision were ‘unanticipated’ at the time of the law’s adoption.”

The King is Dead

Relatedly, the Court reiterated once again by its silence today that it does not regard its 2015 decision in King v. Burwell as law. King refused to read a provision of the Affordable Care Act to mean what it obviously said: that Obamacare subsidies went to exchanges established by states. In fact, it upheld an IRS regulation that explicitly applied such subsidies to exchanges “regardless of” whether they’d been established by states. The language in question, as in Bostock, undoubtedly caused a court fight because Congress had failed to do its job properly. The whole point of Chief Justice Roberts’s opinion in King was that the literal language of the statute had to give way to an understanding of the statutory purposes. As I noted in 2018, the Court, when presented with almost exactly the same issue in a less-controversial area of the law, unanimously refused to even so much as cite King as a precedent (even when lower courts in the case had followed it), and reached a directly opposite conclusion. The same happened today: Roberts and the Court’s four liberals (all of whom were in the King majority) signed onto an opinion pronouncing:

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. 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.

King was never mentioned, reflecting the tacit agreement among the justices who joined it that it shall not be spoken of again. In fact, Gorsuch’s opinion specifically argues — again, in sharp contrast to King — that the Court should confine itself to examining the statutory language rather than considering the results of reading the language that way:

Rather than suggesting that the statutory language bears some other meaning, the employers and dissents merely suggest that, because few in 1964 expected today’s result, we should not dare to admit that it follows ineluctably from the statutory text. When a new application emerges that is both unexpected and important, they would seemingly have us merely point out the question, refer the subject back to Congress, and decline to enforce the plain terms of the law in the meantime. That is exactly the sort of reasoning this Court has long rejected.

In other words, none of the justices who signed onto the King decision actually believed in it.

When Congress screws up, the Supreme Court is sometimes tasked with picking up the pieces. We should not be surprised when it applies different standards to do so in different cases, with conservative arguments getting the short end of the stick each time.

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