Emily Bazelon has written a very long article against originalism. There’s a lot that I think she gets wrong. In this post, I’m going to focus only on her opening dozen or so paragraphs where she argues that Justice Gorsuch’s commitment to textualism ought to require him to rule that Title VII’s ban on discrimination “because of … sex” prohibits discrimination on the basis of sexual orientation and gender identity. (The pending cases, argued last October, that present those questions are Altitude Express Inc. v. Zarda, Bostock v. Clayton County, and R.G & G.R. Harris Funeral Homes v. EEOC.)
1. Bazelon seems to think that the fact that the lawyer for the Title VII plaintiff says that sex in Title VII means biological sex suffices to establish the merits of his fuller effort at a textualist argument. (“[I]f Gorsuch meant what he said about faithfully following the text and agreed with Cole about its meaning [i.e., sex as biological sex], it was hard to see how he could vote against Stephens [the transgender challenger].”) Indeed, she never even presents what his argument is. She also evidently doesn’t realize that the defendants’ arguments also rest on sex meaning biological sex.
The core claim of the plaintiffs in the various Title VII cases is that any employment practice that can be applied only by identifying an employee’s biological sex amounts to discrimination on the basis of sex under Title VII. But that claim rests on a caricature of textualism as a sort of hyperliteralism denuded from context. Further, it is contradicted by the longstanding acceptance of sex-specific restrooms, sex-specific locker rooms and shower facilities, and dress codes, all of which require taking account of an employee’s sex. In short, Title VII has never been understood to bear the textual meaning that plaintiffs now maintain is compelled.
As Fifth Circuit judge James C. Ho has crisply explained, the traditional understanding of Title VII’s ban on discrimination “because of … sex” is that it adopts an anti-favoritism theory (employers can’t favor men over women, or vice versa) rather than the blindness theory (employers must be entirely blind to a person’s sex) that plaintiffs imagine. That anti-favoritism theory is fully consistent with the text of Title VII, and, unlike the blindness theory, it also comports with how Title VII has been understood for the full history of its existence.
2. Bazelon misquotes Gorsuch’s questions at oral argument and uses her misquote to concoct a gotcha moment in which “Gorsuch seemed caught between the plain meaning of ‘sex’ and a worldview he shares—in other words, between principles and politics.” Here’s the relevant passage from the transcript (pp. 26-27):
JUSTICE GORSUCH: When a case is really close, really close, on the textual evidence, and I — assume for the moment I’m –
COLE: Yeah.
JUSTICE GORSUCH: — I’m with you on the textual evidence. It’s close, okay? We’re not talking about extra-textual stuff. We’re — we’re talking about the text. It’s close. The judge finds it very close. At the end of the day, should he or she take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that — that Congress didn’t think about it –
COLE: So –
JUSTICE GORSUCH: — and that – that is more effective — more appropriate a legislative rather than a judicial function? That’s it. It’s a question of judicial modesty.
Contrary to what Bazelon charges, Gorsuch is not inquiring whether he should abandon what textualism dictates in order to avoid “massive social upheaval.” He is instead inquiring whether, on the assumption that a text is susceptible to two meanings and it’s a “really close” call which of the two is correct, the fact that one meaning would lead to “massive social upheaval” would be a reason to disfavor it.
It’s not an abandonment of textualism to ponder whether, in instances in which textualism doesn’t yield a clear answer, other principles might need to supplement it. Gorsuch’s proposed principle of judicial modesty strikes me as an eminently sensible tiebreaker. (To be clear, I don’t think that a tiebreaker is needed in these cases.)
3. Bazelon suggests that textualism forbids any consideration of a law’s purpose. But as Justice Scalia put it:
The term purposivism suggests, wrongly, that its supposed antonym—namely textualism—precludes consideration of a text’s purpose. That is not so. It is untrue that a textualist judge must “put on blinders that shield the legislative purpose from view.” As we will demonstrate, the textualist routinely takes purpose into account, but in its concrete manifestations as deduced from close reading of the text. It is when an abstract purpose is allowed to supersede text that the result is what Justice Felix Frankfurter cautioned against: “interpretations by judicial libertines” who “draw prodigally upon unformulated purposes or directions.” [Reading Law: The Interpretation of Legal Texts 20 (co-authored with Bryan A. Garner).]
The Supreme Court has long discerned in Title VII’s ban on sex discrimination the purpose of ensuring that members of one sex are not exposed to disadvantageous treatment to which members of the other sex are not exposed—in Judge Ho’s terms, the anti-favoritism theory. Reading that ban to prohibit discrimination on the basis of sexual orientation or gender identity would, as the Department of Justice has explained, contradict that purpose.