Interpreting Interpretation

A too-long discourse on how courts should function.

In yesterday’s post, “Supreme Court Rules LGBT Discrimination Illegal,” I sided with the dissenters as to how the Civil Rights Act of 1964 ought to have been interpreted. The discussion was illuminating but likely changed few minds.

Having read more commentary on the case, notably Sean Trende’s twitter threads yesterday afternoon*, I’m more impressed than I was initially with the cleverness of Justice Gorsuch’s majority opinion. Its logic is unassailable and certainly well-grounded in precedent. Yet I continue to believe, as Justice Alito noted in his dissent joined by Justice Thomas, that it amounted to legislating from the bench.

Unlike our missing colleague, Doug Mataconis, I am not an attorney. I took a goodly number of law classes as part of my political science undergraduate and master’s degrees, but that was more than three decades ago now. Still, I was fascinated by the two semesters of Constitutional Law that I took circa 1986-87. Built around Ducat and Chase’s Constitutional Interpretation, the focus was as much about how the Supreme Court decided its cases over the years as to the decisions themselves.

While I had intended to go on to law school, the realization struck me late in my undergraduate career that the only lawyer jobs that interested me were prosecutor and Supreme Court justice—and that the prospects of me getting the latter job were infinitesimal at best—I instead decided to go into the Army and, ultimately, academia.

Regardless, while I’m much less dogmatic on these issues than I was thirty-odd years ago, my preference has always been for a minimalist role for the courts in interpreting the Constitution and legislation.

As I noted yesterday, I’m more sympathetic to the “living” approach to interpreting the Constitution, a deliberately vague and hard-to-change cornerstone document, than I am to statute, which is expected to be changed routinely in accordance with changing political attitudes. That’s by no means a universal viewpoint (and maybe even a minority viewpoint) but it’s one well-grounded in the legal academy.

The debate on statutory interpretation, which was at work in yesterday’s decision, has progressed considerably since my formal study of law ended. The late Justice Scalia’s advocacy of textualism was a key factor in that. And, yet, as we saw yesterday, even textualists can disagree passionately about outcomes.

CRS’ Valerie Brannon has an excellent primer on “Statutory Interpretation:
Theories, Tools, and Trends
” that runs 50-odd pages. Here’s the upshot from the executive summary:

In the tripartite structure of the U.S. federal government, it is the job of courts to say what the law is, as Chief Justice John Marshall announced in 1803. When courts render decisions on the meaning of statutes, the prevailing view is that a judge’s task is not to make the law, but rather to interpret the law made by Congress. The two main theories of statutory interpretation—purposivism and textualism—disagree about how judges can best adhere to this ideal of legislative supremacy. The problem is especially acute in instances where it is unlikely that Congress anticipated and legislated for the specific circumstances being disputed before the court. While purposivists argue that courts should prioritize interpretations that advance the statute’s purpose, textualists maintain that a judge’s focus should be confined primarily to the statute’s text.

Regardless of their interpretive theory, judges use many of the same tools to gather evidence of statutory meaning. First, judges often begin by looking to the ordinary meaning of the statutory text. Second, courts interpret specific provisions by looking to the broader statutory context. Third, judges may turn to the canons of construction, which are presumptions about how courts ordinarily read statutes. Fourth, courts may look to the legislative history of a provision. Finally, a judge might consider how a statute has been—or will be—implemented. Although both purposivists and textualists may use any of these tools, a judge’s theory of statutory interpretation may influence the order in which these tools are applied and how much weight is given to each tool.

Jane Schacter’s Statutory Interpretation class at Stanford Law takes the same approach:

Statutory law is the dominant source of contemporary law, and it is the form of law that lawyers are likely to confront most often in almost any area of practice. It is also an area of vibrant intellectual debate, as scholars, Supreme Court justices, and others debate the methods and aims of statutory interpretation. This course will stress both the practical and theoretical dimensions of interpretation. Students will learn and apply the methods of statutory interpretation. We will also spend considerable time on contemporary controversies, such as debates about textualist, purposive and dynamic interpretation; about the use of legislative history and canons of construction; about the special interpretive problems that arise in the context of direct democracy; and about the democratic and constitutional foundations of statutory interpretation itself. Readings will draw from political science as well as law. Elements used in grading: Class participation and final exam.

The gang at the Volokh Conspiracy have some excellent takes on yesterday’s ruling as well.

Jonathan Adler was first out of the gate with a hasty summary. He notes,

The decisions in this case highlight a tension with textualism: Do we focus on the discrete meaning of the words, or do we focus on the words as they would have been understood and applied at the time they were adopted. On the one hand, as Justice Gorsuch notes it is virtually impossible to discriminate against someone based upon their gender identity or sexual orientation without discriminating against them on the basis of sex. On the other hand, it is indisputable that the authors of Title VII thought they were prohibiting discrimination against women, not that they were protecting sexual orientation. Indeed, sexual orientation discrimination was enshrined in law throughout the nation when the language was adopted.

He also wonders, as have many others, whether Chief Justice Roberts shrewdly joined the majority so that he could assign the writing of the opinion rather than leaving it to Justice Ginsburg. There’s certainly precedent for that. As Bob Woodward wrote decades ago in The Brethren, Chief Justice Burger did so often.

Adler also highlights a tweet from Bryan Garner, a frequent Scalia co-author:

Scalia J. would have been with Alito J. in dissent because the nobody-ever-thought-it-meant-that line of reasoning carried a lot of weight with him. (For what it matters [not a whit!], I’d have been with Gorsuch J.) The important thing is that all the opinions were TEXTUALIST.

Ilya Somin, who mostly liked the opinion, has a more full discussion of “Textualism and Purposivism in Today’s Supreme Court Decision on Discrimination Against Gays, Lesbians, and Transsexuals.” It’s a very solid defense of Gorsuch’s reasoning and one that I would be much more sympathetic to were this an Equal Protection Clause case rather than a Civil Rights Act of 1964 case.

His objection is tangential to mine:

My only possible hesitation has to do with the issue of respect for precedent. The Supreme Court has a longstanding strong presumption against reversing its own statutory precedents. They are considered different from constitutional precedents because the former can be reversed by Congress, while the latter can only be changed by the Court itself or by a constitutional amendment.

The issue in this case had never previously been addressed by the Supreme Court. But there was a long history of lower federal court decisions and executive branch policies rejecting the argument that Title VII bans sexual orientation discrimination. Only in very recent years have some lower courts ruled the other way. I am not sure to what extent the Supreme Court should hesitate to overrule longstanding lower-court statutory precedents, as opposed to its own. That was the main reason I did not join any amicus briefs in this case, or write one myself (as I did in Obergefell, a constitutional case).

Dale Carpenter‘s view in “Textualisms Redeemers” is much closer to mine.

There is an additional debate to be conducted among textualists about what we are supposed to be doing when we read legal texts. In the words of one dissenting commentator on this blog: “Textualism is not an interpretive theory. It is just a method of originalism.” Really? The inverse seems to be closer to the reasoning of two leading conservatives now on the Court, at least when it comes to statutory interpretation: Originalism is not an interpretive theory. It is just a method of textualism.  That debate is now teed up.

At the same time, it’s hard to escape the conclusion that there was more than clinical textualism behind this decision. The relevant text of Title VII has not changed in 56 years, and for most of that time lower courts uniformly read the text as not including protection for gay or transgender employees. But the existence of an LGBT-equality movement shifted the range of believable textualist arguments.

Still, the most persuasive case for Alito’s dissent is Alito’s dissent (as excerpted by Adler):

There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: “race, color, religion, sex, [and] national origin.” 42 U. S. C. §2000e-2(a)(1). Neither “sexual orientation” nor “gender identity” appears on that list. For the past 45 years, bills have been introduced in Congress to add “sexual orientation” to the list, and in recent years, bills have included”gender identity” as well. But to date, none has passed both Houses. . . .

Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution (passage in both Houses and presentment to the President, Art. I, §7, cl. 2), Title VII’s prohibition of discrimination because of “sex” still means what it has always meant. But the Court is not deterred by these constitutional niceties. Usurping the constitutional authority of the other branches, the Court has essentially taken H. R. 5’s provision on employment discrimination and issued it under the guise of statutory interpretation. A more brazen abuse of our authority to interpret statutes is hard to recall. . . .

The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated–the theory that courts should “update” old statutes so that they better reflect the current values of society. . . . If the Court finds it appropriate to adopt this theory, it should own up to what it is doing.

Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964.

It indisputably did not.

I’ve made similar arguments over the years. For example, given the decades-long failed attempts to add an Equal Rights Act to the Constitution, I was more than a bit skeptical of a series of Supreme Court rulings that not only made such an amendment unnecessary but went on to achieve reductio creep. That is, not only has the court ruled discrimination on the basis of sex unconstitutional despite our failure as recently as 1982 to enshrine that principle via amendment, but they used that principle to mandate gay marriage and transgender protections—absurdist arguments advanced at the time to defeat the amendment.

As noted previously, I’ve become more sympathetic to such expansionism in Constitutional interpretation. I’ve long believed, for example, that the “cruel and unusual punishment” clause of the 8th Amendment is reasonably a moving target. So, there’s an argument to be made for expansive views of rights based on shifting societal norms.

But, again, I see no reason to do that for statutes. The fact that Congress is often feckless (mostly owing to a revanchist Republican Party) should not overturn the Constitutional roles of the three branches.

__________________

*When I went to update the post with links to said threads, I found this longform piece he wrote for the RealClearPolitics blog: “Why Roberts, Gorsuch Voted With Liberals on LGBT Case.”

FILED UNDER: Law and the Courts, Supreme Court
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. @James:

    But, again, I see no reason to do that for statutes. The fact that Congress is often feckless (mostly owing to a revanchist Republican Party) should not overturn the Constitutional roles of the three branches.

    I think as long as you have a constitutional court that has the power of judicial review, you are going to get interpretations that have major policy implications. Indeed, I think it is inherent to a common law system even at lower levels.

    And, I would note as came up yesterday in the discussion, there is nothing stopping Congress from passing a law clarifying this issue if Congress so wants. As such, these rulings do not break separation of powers.

    Indeed, I would argue that such rulings are inherent to separation of powers. The Congress isn’t the final say on what legislation means because of separation of powers and checks and balances.

    Alito is wrong. The Court did not legislate. Legislation is the making of law out of nothing via the actions of Congress. The Court interpreted the meaning of a law, which is constitutionally the Court’s role.

    Reasonable people can disagree about the interpretation, but this is separation of powers in action.

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  2. OzarkHillbilly says:

    Words have meaning. Be careful what you say and even more careful what you write. If Congress doesn’t like this decision then can pass a new more explicit law. Isn’t that what they keep saying about the decision in Shelby?

    ETA: or what Steven said.

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  3. Modulo Myself says:

    The people who wrote the law in 1964 had a lid on their prejudices, and the law reflects that. Some Senator who was a member at an all-white country club still intended to have a world in which nobody could be discriminated against at all times solely because they were black. He was also not exactly deeply curious about why everyone else like him was white (and male and straight), with maybe one or two exceptions.

    No one should be surprised that Republicans like Gorsuch or Roberts (who did nothing to save the Voting Rights Act) are cut from the same cloth.

    I would add that there’s a perversity in believing laws resist any interpretation. Riding your high-horse about chaos due a court interpreting a statute with the end result being gay people can’t discriminated is perverse. Alito’s dissent goes from the horror of legislation from the bench to fantasies about bathrooms and trans people and I think there’s a link there.

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  4. MarkedMan says:

    James, I’m having a hard time getting past your reliance on Alito in this. Alito rules in favor of his class virtually 100% of the time and then reaches into his bag of words to pull out something convenient. If the logic he used in a previous case might mean that a minority, a gay person or an average worker would come out on top, no problem, he will discover that this case is a tricky exception. 15 years ago he was arguing that a strict reading of the text meant that Lilly Ledbetter couldn’t bring her suit and it didn’t matter what the intent of the legislature was. Yesterday he said the opposite because, reasons. He always has lots and lots of reasons.

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  5. mu says:

    It will be interesting to see if Alito’s “meanings don’t evolve” stand will hold when it comes to the 2nd amendment, and we’re limited to blackpowder rifles.

    4
  6. Stormy Dragon says:

    Its logic is unassailable and certainly well-grounded in precedent. Yet I continue to believe, as Justice Alito noted in his dissent joined by Justice Thomas, that it amounted to legislating from the bench.

    Someone want to tell me again how Dr. Joyner is an ally?

    6
  7. Jay L Gischer says:

    Having watched many justices on this Court strike down parts-and attempt to strike down all-of Obamacare based on “Nyah, nyah, you wrote it wrong”, ahem, I mean on something highly textualist, I am not especially swayed by their sudden conversion to purposivism. Justice Alito and Thomas, I’m looking at you.

    I am of the view that sometimes legislators want the Court to change the meaning because it means they won’t have to take the heat for voting for/against legislation on such an issue. I’d wager that at least half of the Republican legislators in Washington fall into this camp on this issue.

    7
  8. Stormy Dragon says:

    The fact that Congress is often feckless (mostly owing to a revanchist Republican Party) should not overturn the Constitutional roles of the three branches.

    After all, as a white heterosexual man, it’s not going to be Dr. Joyner’s life that gets destroyed during the wait, so who cares? /sarc

    8
  9. R.Dave says:

    @OzarkHillbilly: Words have meaning. Be careful what you say and even more careful what you write.

    Sure, words do have meaning, and legislators should be careful with their drafting, but even the most concrete words and most careful drafting can be twisted by a bad faith reading (or clever lawyering if you prefer). That’s always been my biggest concern with a hard Textualist approach – courts shouldn’t act like evil genies deliberately twisting the legislature’s “wishes” in ways they never intended or even contemplated based on a bad faith / clever read of the wording.

    I think the policy implications of this decision and heavy moral freight attached to them are leading a lot of pro-LGBT+ rights folks to cheer an interpretive approach that they would decry in other circumstances. I mean, if you like this decision, ask yourself if you would be (will be?) as thrilled with the elimination of all affirmative action / diversity hiring programs on the same hard Textualist read of the Title VII prohibition of discrimination on the basis of “race”. There’s no exception there for discrimination that favors marginalized communities; the affirmative action / diversity stuff that’s allowed now is only allowed because of a Purposivist interpretation of the statute by previous Courts.

    2
  10. R.Dave says:

    @MarkedMan: James, I’m having a hard time getting past your reliance on Alito in this. Alito rules in favor of his class virtually 100% of the time and then reaches into his bag of words to pull out something convenient….15 years ago he was arguing that a strict reading of the text meant that Lilly Ledbetter couldn’t bring her suit and it didn’t matter what the intent of the legislature was. Yesterday he said the opposite because, reasons. He always has lots and lots of reasons.

    Yeah, Alito seems to have pretty clearly outed himself as a “fair weather Textualist” here. Gorsuch, on the other hand, really did demonstrate that his judicial principles are legit and not merely convenient cover for his underlying policy preferences.

    3
  11. Stormy Dragon says:

    @R.Dave:

    Yeah, Alito seems to have pretty clearly outed himself as a “fair weather Textualist” here.

    A pretextualist, if you will.

    13
  12. Beth says:

    @Stormy Dragon:

    Someone want to tell me again how Dr. Joyner is an ally?

    He’s not there, but he can at least see the contours of the problems. We can probably win him over to the better side, but we’re going to have to keep pointing out his blind spots.

    6
  13. R. Dave says:
  14. MarkedMan says:

    @Jay L Gischer:

    Having watched many justices on this Court strike down parts-and attempt to strike down all-of Obamacare based on “Nyah, nyah, you wrote it wrong”, ahem, I mean on something highly textualist, I am not especially swayed by their sudden conversion to purposivism.

    Nothing to add, just felt this deserved more attention

    2
  15. James Joyner says:

    @Stormy Dragon: @Beth: I’m a rule of law guy. I think process very much matters. At the end of the day, I want laws made by the elected representatives of the people, not judges.

    Like Kavanaugh, I think the policy outcome was right but the way we got there wrong. The way to change the law is to write new laws. We had a Democratic President with a Democratic House and Senate for quite a while under President Obama. They could have changed the law. Hell, they managed to get the law changed to gender-integrate combat specialities in the military. Why didn’t they change the law on this one? And, even if Republicans in the Senate were able to stop it, there’s nothing to stop states and localities from changing their laws.

    2
  16. James Joyner says:

    @Steven L. Taylor:

    The Court did not legislate. Legislation is the making of law out of nothing via the actions of Congress. The Court interpreted the meaning of a law, which is constitutionally the Court’s role. Reasonable people can disagree about the interpretation, but this is separation of powers in action.

    I’m sympathetic to that argument in the main but don’t find it persuasive in this case. Often, it’s impossible to infer what the legislative intent was and all we have to fall back on is the wording of the statute. But even Gorsuch fully acknowledges that he knew damned well that the people who wrote this law in 1964 had no intention of creating this situation. So, effectively, the majority substituted their version of the law for the one that’s been in place for the last 56 years.

  17. Roger says:

    I was amused yesterday by the kerfuffle over the Bostock opinion between a lot of people who obviously have not followed how statutory construction in judicial opinions has evolved. It gave me a little better sense of how Dr. Taylor feels when those of us who gain our understanding from commentary and twitter threads, as Dr. Joiner has here, take him on.

    When I got out of law school in 1985 courts generally interpreted statutes by looking to the purpose of the statute and deciding what interpretation best advanced that purpose. That’s not to say that textualism didn’t exist, but it decidedly was not the primary interpretative tool used by courts. Conservatives hated that, calling it judicial activism. Scalia was in the vanguard of the movement to change that, and he succeeded in changing the rules of the interpretative game to an extent I don’t think anyone believed was possible back then. As Justice Kagan said, we’re all textualists now. This is true not just at the level of the Supreme Court but in state courts, too. Courts in Missouri and Kansas, the two states where I practice, have applied an exaggerated textualism as the key to statutory construction for well over a decade. In this context, if Gorsuch’s opinion struck you as a clever trick it just shows that you haven’t been paying attention. It was a straightforward application of a judicial interpretative approach he long has advocated.

    You may not like that approach. I don’t (in principle), because I think it elevates form over substance, but even though I don’t like it I use it. That’s how you win cases now.* One problem with an honest textualist interpretation is that it sometimes will give policy results that were not intended. That’s the price you pay for an approach that’s supposed to reduce subjectivity in the interpretation of statutes.

    People were surprised by Gorsuch’s opinion because they didn’t expect him to do what he said he does and apply the theory honestly. Scalia sometimes cheated on how he applied textualism to get his desired approach and Alito almost always cheats if that’s what it takes to get him where he wants to go. I don’t know enough about Gorsuch yet to know if this is evidence of a consistent, principled approach to statutory construction or this was just a situation where the approach yielded a result he didn’t mind. Only time will tell about that. But I’ve read enough Alito to tell you that his cries about judicial legislation were dishonest hackery.

    *In Missouri, for instance our legislature has been working on what they call tort reform for decades, and though they’ve done a lot of damage we’ve beaten back a number of their efforts to take away folks’ rights by arguing that the courts should apply the statutes as written; they have so little respect for the law that they keep having their lobbyists draft their bills instead of lawyers, and end up with sloppy statutory language that doesn’t do what they wanted to do. So while in a fair world I wouldn’t care much for a textualist approach, I’m ok with it in the world we’ve got.

    11
  18. Gustopher says:

    Its logic is unassailable and certainly well-grounded in precedent. Yet I continue to believe, as Justice Alito noted in his dissent joined by Justice Thomas, that it amounted to legislating from the bench.

    But how does this differ from from an unexpected loophole in a tax law?

    Congress passes laws. They use imperfect human language.

    The executive enforces the laws, interpreting them in the process.

    The judiciary judges the results of the executive’s interpretation, again interpreting the laws.

    Congress can go back and refine the laws, if it sees fit, to clarify any unexpected interpretation.

    This is how it has always worked. If the logic of the ruling is unassailable, then the only reason that this interpretation wasn’t enforced up until now is that no one thought to apply this logic.

    You can say that congress screwed up back in the 60s when they wrote the law, and they probably did, but sometimes errors turn out good.

    6
  19. MarkedMan says:

    @James Joyner: You still haven’t responded to my observation that only in civil rights cases do we look at intent. Every commercial case hinges on what the statute says and not on what the intent was. Why are you carving out this exception for civil rights?

    9
  20. MarkedMan says:

    @James Joyner: You still haven’t responded to my observation that only in civil rights cases do we look at intent. Every commercial case hinges on what the statute says and not on what the intent was. Why are you carving out this exception for civil rights?

  21. @James Joyner:

    So, effectively, the majority substituted their version of the law for the one that’s been in place for the last 56 years.

    I think the only way to have a legal universe that works the way you want it to is the have all laws sunset, and sunset in a way that somehow require congressional action to address the sunset.

    I think, too, you would like the law to have more a static truth than is every really true about human institutions. (I understand the appeal, as I used to think more than way–the appeal that there actually be a true, right answer in almost a Platonic sense). It also requires an idealized Congress and court system that simply does not exist and never did.

    9
  22. wr says:

    @James Joyner: “And, even if Republicans in the Senate were able to stop it, there’s nothing to stop states and localities from changing their laws.”

    Of course if one were a member of a class suffering from legalized discrimination one might wonder why one’s own civil rights should be subject to the whims and prejudices of a local minority, and whether it’s right that someone who lives a quarter mile away is afforded civil rights because his local government hasn’t been taken over by bigots.

    10
  23. MarkedMan says:

    @Roger:

    Alito almost always cheats if that’s what it takes to get him where he wants to go… But I’ve read enough Alito to tell you that his cries about judicial legislation were dishonest hackery.

    This. James quoting Alito’s judicial philosophy is like me quoting my friend’s dog’s gustatory theories. You can put all kinds of high sounding words around her motivations but basically she’ll crawl into any garbage can that has what she wants.

    9
  24. Stormy Dragon says:

    @James Joyner:

    I’m a rule of law guy. I think process very much matters. At the end of the day, I want laws made by the elected representatives of the people, not judges.

    I saw a chart over the weekend showing the history of polling on legal protections for LGBT people. As far back as 1977, 58% of Americans thought LGBT people should be protected from work place discrimination. It’s now 86%. For half a century and increasingly minuscule minority has thwarted popular will.

    And you expect another generation to just sit their quietly and let their lives be destroyed because you don’t care the cost as long as your precious system is maintained. Because status quo means you don’t have to actually do anything about problems.

    Screw your process.

    8
  25. Michael Reynolds says:

    I have a simple test. If your theory hurts children or innocent adults, screw your theory.

    12
  26. R.Dave says:

    Honest question to those who support this decision and claim to not care about the process issues: Do you think the plaintiff in this case, or in any other Title VII case brought with respect to employment discrimination against gay/trans people that occurred prior to this ruling, should be entitled to damages? Setting aside the Textualist vs Purposivist debate for a minute, are you at all troubled by the reversal of established practice here, given that a change in judicial interpretation (unlike a legislative change to the statute) may result in retroactive liability? For 56 years, the law had been interpreted, applied and widely understood as not prohibiting gay/trans discrimination, so employers, including the defendant in this case, will now suddenly be liable for potentially millions of dollars in damages for conduct that was, until yesterday, almost universally understood to be lawful. Does that seem right to you? And before you answer, consider whether you think all the employers that currently have affirmative action / diversity programs should be liable for damages to white plaintiffs if/when the same statutory interpretation arguments are used to rule that such programs violate the Title VII prohibition against racial discrimination.

    2
  27. Stormy Dragon says:

    @R.Dave:

    are you at all troubled by the reversal of established practice here, given that a change in judicial interpretation (unlike a legislative change to the statute) may result in retroactive liability?

    Nope.

    3
  28. @R.Dave:

    may result in retroactive liability?

    I think that “may” is doing a lot of work for your argument. Although, to be honest, I have no sense as to whether such an outcome is likely. Do you have some previous example in mind or this is a wholly hypothetical scenario?

    4
  29. Daryl and his brother Darryl says:

    It’s fuqing hilarious that the same folks who argue that Authors of the Civil Rights Act, in 1963/64, could not have possibly intended for the law to include LGBT folks…are also pretty fuqing positive that the Authors of the 2nd Amendment, in 1789, most certainly intended for it to include AR15’s, grenade launchers, tanks, and whatever else the ammo-sexuals are currently fetishizing.
    Overall…I’m most taken with the fact that, in 2020, we have 3 current Republican Justices who are in favor of discrimination.

    13
  30. Michael Reynolds says:

    @R.Dave:
    Up until 1865 it was perfectly legal for people to own other humans as property. Suddenly, over night, they were deprived of the core of their wealth, a far more devastating blow than anyone will be suffering for this decision.

    What’s the alternative? To grandfather in all previous behaviors as acceptable?

    I take your point that we can’t go around declaring socks illegal and fining everyone but Don Johnson. But this is purely civil, not criminal, and the people discriminating against gays and trans had more than enough reason to suspect that they were acting badly. This isn’t a bolt out of the blue. They chose to make this fight and they lost.

    10
  31. James Joyner says:

    @Roger: Right. While I have kept up with this as a hobbyist, “textualism” was barely a thing when I studied Constitutional interpretation formally in the 1980s. Scalia was on the bench but hadn’t begun to have the impact he’d ultimately have.

    @MarkedMan: My simple answer is that my interest in the law is selective. That is, while I had a Business Law class or two and an Admin Law class or two back in the day, my interest is really in Constitutional Law and theories of interpretation. I’m a political scientist by training and inclination, not a lawyer.

    @Steven L. Taylor: Almost certainly true. And, honestly, I do think laws should sunset for this and other reasons.

    @Stormy Dragon: I don’t know that the popular will has been ‘thwarted’ in this case so much as not addressed. But, yes, we have a weird system that’s inherently unresponsive to simple majorities.

    @wr: That’s simply how our system was designed to work. Like it or not, most of our laws are set and enforced by states and localities.

    1
  32. Daryl and his brother Darryl says:

    The late Justice Scalia’s advocacy of textualism was a key factor in that.

    This is fuqing comical.
    Scalia…may he be rotting in hell…was neither a textualist, nor an originalist.
    To him those were simply slogans used to give cover to his political agenda.
    Any analysis that pretends otherwise is fatally flawed.

    15
  33. Stormy Dragon says:

    @Daryl and his brother Darryl:

    Best example was Gonzales v. Raich where he came right out and said in his opinion that a textualist approach would require overturning the laws in question, but drugs are bad so I’m upholding it.

    8
  34. R.Dave says:

    @Steven L. Taylor: I think that “may” is doing a lot of work for your argument. Although, to be honest, I have no sense as to whether such an outcome is likely. Do you have some previous example in mind or this is a wholly hypothetical scenario?

    My understanding is that this case has been remanded to the lower court for reconsideration in light of the USSC’s ruling, and if the plaintiff proves his case, he’ll be entitled to damages like anyone else with a successful employment discrimination claim. Presumably it’ll be the same for anyone else with a pending claim for gay/trans discrimination going through the courts. I said “may” mainly because I’m not sure whether it’s different for people who hadn’t yet brought a claim prior to the ruling or, with respect to the AA/diversity hypo I mentioned, whether a reversal of prior USSC precedent has the same retroactive liability effect.

    This is way outside my lane though, so I’m more than happy to be corrected if I’m mistaken on any of that.

  35. MarkedMan says:

    @R.Dave: You mean, as happens in every commercial decision? i.e. a ruling upends long standing practice and the plaintiff is eligible for damages based on the ruling?

    Look, that city in Georgia who fired an employee because he joined a gay softball team thought they could treat this guy like garbage because the courts would have their back. They were wrong. And now we are supposed to feel sorry for them? Maybe they would be better off if they weren’t bigoted *ssholes?

    6
  36. MarkedMan says:

    @Michael Reynolds:

    I take your point that we can’t go around declaring socks illegal and fining everyone but Don Johnson

    Very nice. Okay, the kiddies might not get the reference, but for we olds – spot on

    3
  37. pylon says:

    @James Joyner:

    Even a cursory review of tax law history will show you that statutory interpretation has always led to consequences unintended by the drafters due to vague or broad language. And if they legislature doesn’t like that consequence, they are free to change it. The do all the time to close tax loopholes. So in this case, if the legislators don’t like LGBTQ inclusion, they can go sharpen their pencils and work on redoing the law.

    6
  38. R.Dave says:

    @MarkedMan: You mean, as happens in every commercial decision? i.e. a ruling upends long standing practice and the plaintiff is eligible for damages based on the ruling?

    Yes, absolutely. I think the public having adequate notice of the law – meaning the ability to know or discover what the law is – before being penalized for breaking it is a key component of fairness and justice. That principle is so important that the Framers expressly prohibited Congress from passing ex post facto laws in the Constitution, and for the same reason, I think judges should be very reluctant to upend long-standing “as applied” rules that expose people to retroactive liability.

    @MarkedMan: Look, that city in Georgia who fired an employee because he joined a gay softball team thought they could treat this guy like garbage because the courts would have their back. They were wrong. And now we are supposed to feel sorry for them? Maybe they would be better off if they weren’t bigoted *ssholes?

    It’s not about feeling sorry for them. It’s about the fundamental fairness and justice of the rules and system we live under. I don’t feel sorry for rapists and murderers, but I’ll still fight tooth and nail to ensure they get the benefit of due process.

  39. MarkedMan says:

    @R.Dave: Fairness is the issue though, isn’t it. You are concerned about the fairness to the all the people who discriminated over the years and thought they could get away with it. But what about the planintiffs who were materially harmed?

    PWC concocts a tax shelter and sells it for years and people use it to avoid paying taxes. The IRS catches on and says, “this is bogus” and the courts decide in their favor. The tax payers have to pay the back taxes and all the penalties accrued. Just ask Willie Nelson.

    Why should it be different in Civil Rights cases? Why should we give special consideration to those who thought they could get away with discrimination based on what experts told them when we don’t give special consideration to those who thought they could get away with a tax scheme based on what experts told them?

    6
  40. Stormy Dragon says:

    R.Dave is basically arguing for Corporate Qualified Immunity.

    And it’s a bad idea for the same reason it’s a bad idea for Law Enforcement.

    6
  41. Just nutha ignint cracker says:

    I’m sympathetic to that argument in the main but don’t find it persuasive in this case.

    Of course not. There’s nothing for you to gain in this case. Why stick your neck out and commit to a principle if it can backfire on you?

    I’m sure that Republicans in the Senate were asking the same question when they courageously took no action on the House bill discussed briefly in the previous post.

    5
  42. Just nutha ignint cracker says:

    Why are you carving out this exception for civil rights?

    Because of who benefits from civil rights?

    (I would hope that’s not the reason in this case, but, for example, I’m quite confident of the motive in the cases of people like McConnell, Graham, Cruz, Trump, etc. I attribute my cynicism to self-knowledge, past experience in applying my own self-knowledge, and my resignation to the fact that “I am sinful from my mother’s womb.”)

    2
  43. R.Dave says:

    @MarkedMan: Why should it be different in Civil Rights cases? Why should we give special consideration to those who thought they could get away with discrimination based on what experts told them when we don’t give special consideration to those who thought they could get away with a tax scheme based on what experts told them?

    You’ve made variations of this point in several places in this thread and the one yesterday, but I’m not sure I grant the premise. You seem to take it as a given that interpretive approaches and judicial canons are applied differently in civil rights law cases than in commercial regulation cases, but I’m not sure what you’re basing that on. For my part, I don’t advocate any such differentiation. I think courts should be cautious about interpreting (or worse, re-interpreting) statutes in ways that deviate from settled practice and/or general understanding where doing so would lead to retroactive liability or cost.

    Also, just a side note, but I will say that tax law cases are, in my opinion, not good guides to how non-tax statutes get interpreted and applied since, for some bizarre reason, courts give the IRS more of a free hand to do whatever the hell it wants than pretty much any other governmental agency.

  44. Just nutha ignint cracker says:

    @R.Dave: Gee, I’m genuinely torn. Is it possible to hold that while such victims may be entitled to such damages, that retroactive liability is probably one of those “eye for an eye mak[ing] the whole world blind” things?

    1
  45. DrDaveT says:

    A tangent that I haven’t heard anyone opine on…

    The logic of Gorsuch’s argument is that it is illegal sex discrimination if you refuse to hire someone in a case where, if all the facts were identical except for the sex of the candidate, you would not have refused. Do I have that right?

    If I do, then it seems to me that it is still legal to refuse to hire someone on the grounds that they are married to a transgender person, so long as you apply that rule equally for both male and female (and nonbinary) candidates.

    Yes? No? What am I missing?

  46. Ebenezer_Arvigenius says:

    @James Joyner:

    I’m sympathetic to that argument in the main but don’t find it persuasive in this case. Often, it’s impossible to infer what the legislative intent was and all we have to fall back on is the wording of the statute. But even Gorsuch fully acknowledges that he knew damned well that the people who wrote this law in 1964 had no intention of creating this situation.

    I’d posit that you don’t sufficiently distinguish between intent and the expression of that intent. You claim that they weren’t thinking about transsexuals. Yes, but: they were thinking about discrimination against non-males or, even more broadly: against the non-dominant gender.

    That’s a general principle. That they arrived at this principle by thinking about a specific application of that principle does not mean that they weren’t legislating the principle instead of its expression.

    It’s basically the same approach as the Declaration of Independence. That the drafters didn’t think of slaves when thinking about the text doesn’t mean that the aspiration expressed therein is not actually there. The drafters were just wiser then they held themselves to be :-).

    4
  47. MarkedMan says:

    @R.Dave:

    You’ve made variations of this point in several places in this thread and the one yesterday, but I’m not sure I grant the premise. You seem to take it as a given that interpretive approaches and judicial canons are applied differently in civil rights law cases than in commercial regulation cases, but I’m not sure what you’re basing that on

    Wow. You have that 180 degrees backward. What I’m saying is that you are asking for special rights for those found guilty of violating civil rights as opposed to commercial rights. I’m pointing out that in commercial rights once the courts find that a law had been violated and a party injured because of that violation, the party is generally entitled to redress. You seem to be saying that because the Georgia government official truly truly believed that the courts would have his back when he fired the guy for being gay, Georgia should be given a pass. Which is why I ask: Why do you think this is different.

    For my part, I don’t advocate any such differentiation. I think courts should be cautious about interpreting (or worse, re-interpreting) statutes in ways that deviate from settled practice and/or general understanding where doing so would lead to retroactive liability or cost.

    I understand what you are saying here and don’t deny that it seems to make some sense. But in this case the plaintiff was clearly harmed. He was fired. He lost his livelihood. He lost his health insurance when he had cancer and faced personal ruin. The cost to him wasn’t retroactive, it was immediate. The fact that this was the way it always was shouldn’t count for anything. Black people always had to sit in the back of the bus. Women always had to accept lower pay. No Irish Need Apply.

    There are two parties. One gets the economic benefit of either allowing redress or making an exception because of tradition. My empathy for those harmed by bigotry vastly overwhelms my empathy for the bigots and so redress is justice. “Fair” is always a balancing act. In my view, the balance tipped the right way for once.

    3
  48. R.Dave says:

    @Stormy Dragon: R.Dave is basically arguing for Corporate Qualified Immunity.

    No, QI is basically “no liability for X unless X was already clearly prohibited”, whereas what I’m advocating is closer to “no liability for X if X was already clearly permitted.”

  49. MarkedMan says:

    @DrDaveT:

    then it seems to me that it is still legal to refuse to hire someone on the grounds that they are married to a transgender person, so long as you apply that rule equally for both male and female (and nonbinary) candidates

    Are you looking for people it is ok to discriminate against? Or is this just a thought exercise?

    3
  50. MarkedMan says:

    @R.Dave: @R.Dave:

    I’m advocating is closer to “no liability for X if X was already clearly permitted.”

    So it was clearly permitted in the South that black men could be beaten up or worse if a white person thought they “looked at” a white woman. A court finally rules to hold the white men to account. But the whites should be let off because of the clear precedent?

    4
  51. DrDaveT says:

    @MarkedMan:

    Are you looking for people it is ok to discriminate against? Or is this just a thought exercise?

    I’m looking for loopholes that remain unfilled, even after this ruling.

    2
  52. OzarkHillbilly says:

    Its logic is unassailable and certainly well-grounded in precedent. Yet I continue to believe, as Justice Alito noted in his dissent joined by Justice Thomas, that it amounted to legislating from the bench.

    I’m still giggling at this. “Logic and precedent be damned, I don’t like this decision and you can’t change my mind!”

    5
  53. An Interested Party says:

    One striking thing I’ve noticed about the conservative response to this decision is the rather hateful and vicious attacks on transgender people…gays and lesbians are mentioned, but a lot of vitriol has been directed at so-called “confused” people who supposedly suffer from a “mental disorder”…and I keep reading about this fear of cis females being attacked in bathroom stalls…it is very similar to what happened in the past in the South with white men so worried about black men coming after white women…I guess it shouldn’t be surprising that despite minor differences the bigotry and fear of minorities, whether it be ethnic or sexual minorities, remains the same…

    8
  54. Jay L Gischer says:

    @Steven L. Taylor:
    You said:

    I think, too, you would like the law to have more a static truth than is every really true about human institutions. (I understand the appeal, as I used to think more than way–the appeal that there actually be a true, right answer in almost a Platonic sense). It also requires an idealized Congress and court system that simply does not exist and never did.

    Which is a really quite good way to say something that was mostly in my head but also mostly inchoate.

    1
  55. Jax says:

    @An Interested Party: After looking at my Facebook news feed today, I have decided I am no longer safe from CONSERVATIVES sharing any restroom I’m in. They are spending ENTIRELY too much time checking out other people’s business, it’s gross. I try not to even make eye contact going in and out of the stalls or washing my hands, FFS.

    11
  56. An Interested Party says:

    @Jax: Yes, apparently a lot of conservatives are entirely too fascinated with other people’s genitalia…why is it anybody else’s business how a person chooses to define his/her/their sex…

    4
  57. James Joyner says:

    @DrDaveT:

    it seems to me that it is still legal to refuse to hire someone on the grounds that they are married to a transgender person, so long as you apply that rule equally for both male and female (and nonbinary) candidates.

    Yes? No? What am I missing?

    The majority seems clear on this: you’re discriminating on account of sex in that case.

    What they explicitly failed to rule on, because it wasn’t at issue in any of the cases in front of them, was religious exclusion. So, it’s possible that a church-affiliated or one privately owned by a religious person may be able to discriminate against gays and transgendered individuals if they have strong religious objections.

  58. James Joyner says:

    @OzarkHillbilly:

    I’m still giggling at this. “Logic and precedent be damned, I don’t like this decision and you can’t change my mind!”

    I like the outcome, not the ruling. If there were, say, an Equal Rights Amendment, I would be much more sympathetic to Gorsuch’s logical parlor trick. We’ve long understood that Constitutional rights grow over time. I don’t think that’s the right approach to statutory interpretation.

  59. OzarkHillbilly says:

    @James Joyner:

    Gorsuch’s logical parlor trick.

    Oh James, you say so very much with that phrase.

    5
  60. R.Dave says:

    @MarkedMan: That was never legally permitted, just extra-legally tolerated.

  61. Beth says:

    @James Joyner:

    What they explicitly failed to rule on, because it wasn’t at issue in any of the cases in front of them, was religious exclusion. So, it’s possible that a church-affiliated or one privately owned by a religious person may be able to discriminate against gays and transgendered individuals if they have strong religious objections.

    We tried this before, we called it separate but equal and Jim Crow.

    Just to be absolutely clear, what you are advocating for here is that if I get shot and get taken to a Catholic Hospital and they cut my pants open and see that my genitals don’t match my presentation, they can go, “oops, Jesus says get this pervert out of here.” The gun shot wound has nothing to do with me being Trans, but they can kick me out to die anyway.

    I could be refused service or employment at a Hobby Lobby or such similar establishment.

    My kids could get thrown out of their Catholic school simply because their parents are “the Queers”.

    You are advocating for a return to a very dark period in American History. THAT DIDN’T the first time we tried it. There were (and still are) plenty of White Christians who thought that God Cursed Black People and Jews and that it was their Religious duty to exclude them.

    3
  62. Just nutha ignint cracker says:

    @Beth: Yeah, he’s observing that such a question is still available to litigate on this issue. Advocating for it to happen? Meh… I don’t see that, and I’ve been pretty critical of Dr. Joyner on topic over the two threads so far.

  63. DrDaveT says:

    @James Joyner:

    The majority seems clear on this: you’re discriminating on account of sex in that case.

    How so? By Gorsuch’s logic, the sex of the candidate is irrelevant to my hiring decision. The sex of the candidate’s spouse is not a protected category.

    What they explicitly failed to rule on, because it wasn’t at issue in any of the cases in front of them, was religious exclusion.

    They did not fail to rule on this. The failure to carve out an exception for religious bigotry in the analysis is an explicit statement that no such exception exists.

    1
  64. An Interested Party says:

    What they explicitly failed to rule on, because it wasn’t at issue in any of the cases in front of them, was religious exclusion.

    It’s always bliss to watch people use religion to practice bigotry…I’m sure it’s easier to hate if you think God told you it’s alright…

    2
  65. Roger says:

    @DrDaveT:

    They did not fail to rule on this. The failure to carve out an exception for religious bigotry in the analysis is an explicit statement that no such exception exists.

    I don’t see how you can say this. Six justices signed off on an opinion that says this:

    But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too. Harris Funeral Homes did unsuccessfully pursue a RFRA-based defense in the proceedings below. In its certiorari petition, however, the company declined to seek review of that adverse decision, and no other religious liberty claim is now before us. So while other employers in other cases may raise free exercise arguments that merit careful consideratoon, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.

    Alito, Thomas, and Kavanaugh will absolutely say that the religious liberty the court discovered corporations have in Burwell v Hobby Lobby trumps this opinion. Roberts was in the majority in Burwell, so he might well join them, leaving it up to Gorsuch to be the deciding vote. This absolutely is an open question.