Reading Bostock v Clayton County, one could be forgiven for thinking Justice Antonin Scalia was still a member of the United States Supreme Court. Monday’s decision, ruling that an employer who fires an individual merely for being gay or transgender impermissibly relies on “sex” within the meaning of Title VII, will doubtless have far-reaching consequences for gay, lesbian and transgender Americans. However, such is Scalia’s outsized influence on the reasoning of the judges, so too will this decision prompt renewed debates on his legacy.
This decision is striking for a number of reasons. Firstly, court watchers used to waiting for decisions involving the rights of gay Americans may have expected this decision to look more like Obergefell v. Hodges, 576 U.S. 644 (2015), where the court divided 5-4. In the wake of that decision, the result here is not so surprising. Rather, the surprise in this case is that it spotlights an interesting debate between all the judges on the court on the role of textualism, and – even more curiously – the claim on both sides to be Scalia’s rightful heirs. Upon reflection, and here is the second point of interest, it is hard to recall a case where someone other than a petitioner/respondent, amicus or other interested party takes such centre stage as Scalia does in the written judgements. Across the three filed opinions in Bostock, the great textualist and originalist judge is quoted or referred to no less than twenty-one times, and often invoked at length. Lastly, it is quite remarkable that, on a question surely dear to the ‘liberals’ on the Court, the case elicited not a word from any of them. Indeed, Bostock emerges as a debate solely between the Court’s Scaliaphiles.
In the majority opinion, from the get-go the reader knows the weapon of choice in this battle: the text of the law. Gorsuch makes this clear in his opening shot: “Only the written word is the law, and all persons are entitled to its benefit.” Other early signals of fidelity to Scalia are evident: on p.8 of the slip opinion, Gorsuch intones that ‘only the words on the page constitute the law adopted by Congress and approved by the President.’ He deprecates “extratextual sources” and judicial “imaginations”. And finally, Gorsuch speaks of the holy grail: the “original meaning of the law.” For Scaliaphiles, this is serious flirtation.
These are not empty platitudes from Gorsuch. Conservative analysts will of course point to this opinion as a betrayal of Scalia’s methods, but a glance at Gorsuch’s other recent writings, such as Bucklew v. Precythe, 587 U.S. ___ (2019), easily put such thoughts to bed. And to be fair to Gorsuch, his opinion does exactly what it says on the tin, focusing almost entirely on the meaning of the words in Title VII. In a comprehensive and (quite succinct) survey, he takes the reader through the definitions of “sex” (p.5), “because of” (p.5), “discrimination” (p.7-8) and “individual” (p.8) – all key terms in the statutory text. Along the way there are illustrative hypotheticals which will assuredly provide useful fodder for law school tutorials. Some of these are very persuasive. And the result of this analysis is clear: “[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
And yet, despite his close attention to words, Gorsuch does not get away with ‘raising the textualist flag’ without an inspection from his colleagues that it is set in solid earth. In this regard, Alito’s dissenting opinion is provocative, for its net effect is to argue that the majority’s proverbial flag is, in fact, staked in quicksand. However, before getting into the grit of the dissent, the first point to bear in mind is that, to seasoned court watchers, Alito would not come to mind as the most devoted textual purist, originalist or Scaliaphile (that prize would surely go to Thomas). Indeed, to pluck just one example, who can forget Scalia’s sharp words of protest in Ohio v. Clark, 576 U.S. ___ (2015)? There, he strongly objected to Alito’s “shovelling of fresh dirt upon the Sixth Amendment right of confrontation”, resuscitated after a long slumber by his beloved originalist opinion Crawford v Washington. This is what makes Alito’s effort to correct his Gorsuch’s approach in Bostock more than a little surprising. Indeed, the second observation is to note that Alito has dusted down his Scalia library much more strenuously than Gorsuch. Where Gorsuch quotes Scalia just twice, Alito’s dissent has whole sections unveiling not just Scalia’s thinking, but the contributions of other leading lights in the textualist school (e.g. Dean John Manning on p.23).
As he starts to pick at Gorsuch’s fidelity to Scalia, Alito accuses the majority of adopting a method totally anathema to this school. It is worth quoting in full:
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.
This must have stung for Gorsuch, but there’s a lot more critique to come. Drawing on Scalia heavily, in part II A of his dissent Alito suggests that the Court ignores the “ordinary” meaning of the statute. Citing from Scalia’s dissent in Chisom v. Roemer, 501 U. S. 380, 405 (1991), Alito implies that the majority “scavenges” English usage to arrive at its interpretation of Title VII (p.33). Calling the majority’s conclusions “feeble” and singling out the “tiny effort” made to support it, Alito then attacks the majority’s reliance on materials that all post-dated Title VII (“One complaint filed in 1969, another filed in 1974, and arguments made in the mid-1970s about the meaning of the Equal Rights Amendment.”). Alito continues with his pummelling on p.36, next taking the majority to task for its use of Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, written by Scalia in 1998. The majority borrows from language in that opinion suggesting that although male-on-male sexual harassment was not the “principal evil” Congress had in mind when it enacted Title VII, the language was still broad enough to shelter it as a comparable evil. Rejecting this out of hand, Alito states that Gorsuch seizes on “mundane” language in Oncale:
It takes considerable audacity to read these comments as committing the Court to a position on deep philosophical questions about the meaning of language and their implications for the interpretation of legal rules (p.37).
Suffice to say, Alito is not at all impressed with Gorsuch’s opinion, warning the reader that ‘no one should be taken in by the majority’s effort to enlist Justice Scalia in its updating project.’ But what of his colleague Justice Kavanaugh, who writes separately in dissent? Interestingly, Kavanaugh calls Gorsuch’s approach not textualist or even originalist, but “literalist” (p.5):
When a gay man is fired because he is gay, he is fired because he is attracted to men, even though a similarly situated woman would not be fired just because she is attracted to men. According to this theory, it follows that the man has been fired, at least as a literal matter, because of his sex.
Like Alito, Kavanaugh has answers for the majority. Invoking Scalia’s works in several places (and, like Alito, Professor Manning too), he argues that “the good textualist is not a literalist” (p.6) and must instead “he[w] to the ordinary meaning of a phrase.” On p. 11, Kavanaugh delivers his verdict on Gorsuch’s word-by-word analysis:
…[T]his Court’s precedents and longstanding principles of statutory interpretation teach a clear lesson: Do not simply split statutory phrases into their component words, look up each in a dictionary, and then mechanically put them together again, as the majority opinion today mistakenly does. See ante, at 5–9. To reiterate Justice Scalia’s caution, that approach misses the forest for the trees.
What would Scalia have made of this duel? On one hand, it is important to remember that Scalia was capable of surprising readers. Perhaps Oncale can be regarded as an example of his open-mindedness. On the other hand, Oncale came before Lawrence v. Texas, 539 U.S. 558 (2003), United States v. Windsor, 570 U.S. 744 (2013) and Obergefell. All of these cases were substantively different to the question raised in Oncale, but for the purposes of predicting where Scalia would fall in deciding Bostok, his views in those cases hardly inspire confidence that he would have voted with Gorsuch here. Indeed, in cases where Scalia was dealing with the substantive rights of gay people, his opinions all revealed clear distaste for any results which advanced these. (On that note, I could not see Scalia signing on to Kavanaugh’s quite gentlemanly nod to the “important victory achieved today by gay and lesbian Americans.” (p.27). In sum, if I were asked to make a dinner party guess, my initial instincts are that he would have written a very spicy dissent in Bostock.
Yet, aside from his personal proclivities, it is also probable that Scalia would simply have preferred Alito’s methodology to Gorsuch’s. The latter announces on p.9 of the majority opinion that a ‘ straightforward rule emerges’ from ‘the ordinary public meaning of the statute’s language at the time of the law’s adoption’, but in reality this is a conclusion without much argument. Besides looking at a few dictionaries, the majority plainly does not consult widely on the public meaning of ‘sex’ in 1964. In contrast, there’s extensive research in Alito’s dissent into contemporaneous sources – in all ten pages of historical evidence underscoring the social context against which Title VII’s meaning should be judged (pp.25-35). To be sure, a great deal of Alito’s historical unveiling is unpalatable (p.28: ‘For most 21st-century Americans, it is painful to be reminded of the way our society once treated gays and lesbians…’), but no reader familiar with Scalia always appreciates his use of history either. Consequently, although Scalia would surely have flown Gorsuch’s textualist flag, he would likely have hoisted Alito’s originalist banner higher in this case.
As a final thought, most gay and transgender Americans will be rejoicing at the result in Bostock. They would, in comparison, most likely find this debate between textualists, originalists and literalists truly dull. But one thing is certain: Scalia would have relished it!