Bostock and Changes of the Guard at the Supreme Court
In Bostock v. Clayton County, the Supreme Court was called upon to interpret Title VII of the Civil Rights Act of 1964, which bars sex discrimination in employment. The issue was whether an employee who was fired expressly for being gay or transgender had been fired based on sex, coming within the purview of the statute. By a 6-3 margin, the Court ruled for the employees, reasoning that it is impossible to take action against an employee based on sexual orientation or gender identity without acting, in the language of Title VII, “because of” the employee’s sex. This is a blockbuster ruling by any standard. While the Supreme Court affirmed marriage equality in 2015, it has nevertheless been the case that same-sex couples could be “married on Sunday and fired on Monday” because many states have no job protections for gay employees and the federal protection, Title VII, had not been interpreted to cover them. That is no longer true. Equally momentous, the Court held that the Title VII’s prohibition of sex discrimination also protects transgender employees.
The opinion is perhaps most surprising because two members of the Court’s conservative wing joined the opinion, with Justice Gorsuch writing, and Chief Justice Roberts joining, the majority. It is notable, as well, that the opinion reaches a historic progressive result through methodologies typically associated with more conservative approaches to the law. In this brief commentary, I consider what the opinion might reflect about Justice Gorsuch in contrast to two of his predecessors—Justices Scalia and Kennedy.
Gorsuch and Scalia
One of the most salient features of Justice Scalia’s tenure on the Court was the debate he ignited about how to read statutes. Since the late 1980s, statutory interpretation has been a flashpoint for debate on the high court, with proponents of traditional “intentionalism” and “purposivism” dueling with Scalia’s preferred “textualism.” The traditional approach that Justice Scalia rejected focused not only on what Congress wrote in the text of a law, but also what it intended. This inquiry was often aided by a close review of a law’s legislative history, such as committee reports and legislative debates about the bill. Scalia rejected this methodology, arguing that the Court should focus on the ordinary meaning of the text, not, more broadly, on what legislators may have intended or wanted to accomplish. And he saw virtually no legitimate role for legislative history, which is not voted on and which he thought was too easy to abuse. There can be no question that Scalia changed statutory interpretation at the Court, elevating his preferred textualism. While Justice Kagan’s claim that “we are all textualists now” is too sweeping, it is certainly true that briefs and legal advocacy at the Court has become much more oriented to text and less focused on legislative history or other indicia of legislative intent.
In Bostock, Justice Gorsuch’s insistent focus on the meaning of the words “because of sex” faithfully channels Scalia’s approach. The Bostock defendants and dissenters vigorously argued that Congress in 1964 simply could not have meant to address the problem of discrimination based on sexual orientation or gender identity. Like a faithful textualist, though, Justice Gorsuch did not contest this point; he merely noted that what Congress might have intended or expected is simply not relevant. What matters, he argued, is that an employer “who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” The argument about congressional wishes in 1964, in other words, reeks of exactly the intentionalism that Scalia excoriated. Justice Alito’s dissent tried to fight off that conclusion by restating in textualist terms the importance of what Congress thought in 1964. But he decisively lost the argument and, at the end of the day, was left accusing Gorsuch of the very “judicial activism” that Scalia had long attached to intentionalism.
Interestingly, Scalia himself had a Bostock-like moment in 1998 in Oncale v Sundowner Offshore Services, when he surprised many observers by using his textualist principles to read Title VII to cover as sex discrimination claims of men sexually harassing other men at work. Like Oncale, Bostock elevated the text over the probable purpose or expectations of the law’s drafters and did so on its way to a rights-expanding result. With today’s decision, Justice Gorsuch has firmly established himself as Scalia’s heir in the realm of statutory interpretation. That does not necessarily mean Justice Scalia would have voted as Gorsuch (or Chief Justice Roberts) did today. Given Scalia’s aggressive social conservatism, I suspect he would not have done so. What it does mean is that Justice Gorsuch has taken the wheel for the textualists and will play the pivotal role in developing the next generation of textualism. It should be fascinating to watch the development of Textualism 2.0.
Gorsuch and Kennedy
Before today’s case, every major Supreme Court decision affirming gay rights was written by Justice Kennedy. Kennedy wrote Romer v Evans (striking down a ballot measure broadly banning gay civil rights protections); Lawrence v Texas (striking down a criminal ban on consensual sodomy); United States v Windsor (striking down the federal Defense of Marriage Act); and Obergefell v Hodges (striking down bans on same sex marriage). This quartet of opinions is at the heart of Kennedy’s legacy and the opinions share certain features. They are long on soaring rhetoric about the unfairness of stigmatizing gay people, the surpassing importance of protecting the dignity of same sex couples and their children, and the deep harms wrought by historic discrimination against this group. By contrast, these decisions were famously short on doctrinal precision, with most failing to identify the standard of review that is typically a key step in constitutional analysis. Granted, the four cases were all matters of constitutional law, not statutory interpretation. But nevertheless, Bostock stands in striking contrast to the Kennedy opinions.
Justice Gorsuch is certainly respectful of LGBT persons in Bostock, but his opinion is insistently doctrinal and precisely analytical. As his opinions often do, it features lively prose and creative analogies. But it conspicuously eschews broad rhetoric about discrimination, and does so as part of the key logic of the opinion. While Justice Kennedy’s opinions focused on claims about the group of gay people and the unfairness of historical discrimination against them and their families, Justice Gorsuch frames his opinion in terms of discrimination against individual employees. In fact, the individual employee—and not the group “gay and lesbian” or “transgender”—is the relevant unit of analysis in Bostock. This focus allows Gorsuch to fend off claims by dissenters that Congress in 1964 was not thinking about addressing discrimination against groups that were either harshly stigmatized or largely invisible in 1964.
In the counterfactual world in which Justice Kennedy was still on the Court and wrote Bostock, the opinion would surely canvass the harms suffered by LGBT employees and emphasize why employment protections are needed. The idea of employees’ dignity would likely make an appearance. The statutory text would be far less the star of the show. The opinion would likely occasion a renewed debate about the mode of Justice Kennedy’s jurisprudence. The fact that Bostock is reasoned in such starkly different terms and comes from the pen of a justice not associated with support for LGBT rights should significantly recast the lines of debate. True, the dissenters rehearse standard–if tired–claims of judicial activism, but the fact that they are resisted by Justice Gorsuch in his own logic of judicial restraint should open new lines of inquiry.
Jane S. Schacter is a leading national expert on statutory interpretation and the legislative process, constitutional law, and sexuality and the law. She is the William Nelson Cromwell Professor of Law at Stanford Law School.