In the immediate aftermath of Justice Gorsuch’s grievously awful majority opinion last June in Bostock v. Clayton County—holding that discrimination on the basis of sexual orientation or transgender status constitutes discrimination “because of … sex” in violation of Title VII—it seemed that nearly every liberal law professor who had previously condemned textualism raced to praise Gorsuch’s opinion as a paragon of textualism.
I’m pleased to highlight that liberal law professors Mitchell N. Berman and Guha Krishnamurthi, who celebrate the result in Bostock as a matter of policy, are vigorously objecting to the chorus of praise. In “Bostock Was Bogus: Textualism, Pluralism, and Title VII,” they argue that Gorsuch was “guilty of illicit deck-stacking” in determining that when a person is discriminated against for being homosexual or transgender, that person’s sex is a but-for cause of the discrimination. Their argument is an extended and more intricate version of the argument that the Solicitor General and other critics of Bostock have offered; I won’t try to summarize it here but will instead refer you especially to pages 16-25 of their paper.
Berman and Krishnamurthi, I’ll note, believe that textualism is the wrong approach to statutory interpretation. They instead advocate what they call pluralism. Even then, they don’t go further than opining that the result in Bostock would be “plausibl[e]” under their pluralist approach.