Have Progressives Finally Learned How to Speak the Language of Supreme Court Conservatives?

Kagan speaks to Gorsuch as Roberts looks on
Supreme Court Justices John Roberts, Elena Kagan, and Neil Gorsuch in D.C. for the State of the Union address on Feb. 4. Brendan Smialowski/Getty Images

Last week, the Supreme Court issued a surprising 6–3 decision barring hiring discrimination against LGBTQ people under Title VII of the Civil Rights Act, with conservative Justice Neil Gorsuch making the textualist case for this landmark protection. The unexpected outcome in Bostock v. Clayton County should provoke introspection among progressives in the legal community who have long been skeptical of textualism, offering a chance for them to fix chronic blind spots and strategic gaffes that have damaged the progressive judicial project.

While it’s clear that this ruling was a major victory for progressives, less apparent is how, going forward, progressive advocates, judges, and politicians should think and talk about statutory interpretation. Although brow-furrowing, that question is hugely important. As the late high priest of conservative textualism, Justice Antonin Scalia, pointed out: “By far the greatest part of what I and all federal judges do is interpret the meaning of federal statutes.” Many of those gnarly statutory disputes involve landmark progressive laws, which, like Title VII, regulate businesses in the interests of consumers, workers, retirees, and other individuals.

The lesson is not that progressives should now tout “textualism” or any other ism. They should, however, focus on Gorsuch’s straightforward argument—how he chose to push back against fierce opposition from dissenters who claimed the true mantle of the textualism faith. “Because of sex,” Gorsuch explained, describing the key language in Title VII for the purposes of this case, necessarily includes “because of sexual orientation and identity.” He continued: “If the employer fires [a] male employee [because] he is attracted to men, the employer discriminates [because of] traits it tolerates in female colleagues. … The affected employee’s sex is a but-for cause of his discharge.” That simple, accessible syllogism is why Gorsuch’s 38-page opinion provoked 134 pages of fevered dissents from Justices Samuel Alito and Brett Kavanaugh. And it’s why his opinion ignited volcanic outbursts by the likes of Carrie Severino and Ralph Reed.

This is the lesson that progressives should take to heart: “Textualism” has made steady headway as a jurisprudential credo—and, equally or more importantly, as a political slogan—because, at its core, it embraces a commonsense truth: that interpretation of what a law means must derive, in the first instance, from its text—what are the relevant words, and what, credibly, could they mean? Inveighing against “textualism” comes off like one disputes that staple of the civics class canon about what courts and law are for—as if progressives fear their preferred results can’t be squared with the words legislators actually wrote.

That’s what, in large part, was wrong with the Bostock dissents’ attacks on Gorsuch. Alito’s dissent overtly deploys a tactic conservatives long ago abandoned as a discredited, subjective, intentionalist brand of constitutional “originalism.” Alito’s lodestar was what he believed the drafters had in mind—more precisely, what the societal status quo was when they wrote.

The definitive rejoinder to that approach was articulated in 2005 by then-nominee John G. Roberts in his Senate confirmation hearing. Roberts testified:

There are some who may think they’re being originalists who will tell you, “Well, the problem they were getting at were the rights of the newly freed slaves,” and so that’s all that the equal protection clause applies to. But, in fact, they didn’t write the equal protection clause in such narrow terms. They wrote more generally. That may have been a particular problem motivating them, but they chose to use broader terms, and we should take them at their word, so that it is perfectly appropriate to apply the equal protection clause to issues of gender and other types of discrimination beyond the racial discrimination that was obviously the driving force behind it.

In Bostock, Kavanaugh’s dissenting argument, distinguishing the “ordinary meaning” of words from “literalism,” is really just a more academically marketable way of making contemporaneous subjective expectations, or societal practice, trump actual enacted language. The expansion over time of “sex” in Title VII matches Roberts’ account of the expansion of “equal protection of the laws” to include gender and other types of discrimination.

Progressives have not been wrong to call out “textualism”—and “originalism”—as slogans to advance conservative political agendas. Conservatives have persistently contorted asserted “textualist” claims to serve patently ideological or political ends, or simply ignored statutory text when it couldn’t credibly be bent. They can be counted on to repeat those gambits again in the future.

The smart response is to explain, effectively, why progressive positions faithfully respect relevant law, and how cynically conservatives flout their own professed affection for text. Progressives need to recycle such messaging over and over, in court battles, media, and academic and political arenas.

Typically, when progressives face purportedly textualist claims designed to defeat the purposes of progressive statutes, conservatives’ tactic is to isolate a single word or phrase, impose a gutting interpretation on that fragment, and subvert the law. When progressives counter that conservative interpretations flout purposes behind laws like Title VII, conservatives have dismissed such “purposivism” as a methodological excuse for making things up on the fly. This discrediting tactic has gained currency in political as well as legal circles.

The smart way to deflect that chestnut is to insist that, when applying a statute, “text” must mean text in the context of the whole statute, not just an isolated provision, standing alone. In 2015, that contextual approach saved the Affordable Care Act from its second existential Supreme Court challenge. In King v. Burwell, Roberts, for a 6–3 majority, upheld the availability of premium tax credit subsidies nationwide against a blinkered claim that a four-word phrase, taken out of context, barred such subsidies for millions of subscribers in dozens of states. Albeit geeky, that “text in context” message garnered critical media support as the case worked its way up to the Supreme Court, where it won over Roberts and conservative Justice Anthony Kennedy, as well as the four progressive justices.

In Bostock, Gorsuch did not use Roberts’ approach from the 2015 ACA case, but he could have. Locating “because of sex” in the overall context of Title VII would have also underscored the textual anomalousness of denying workplace equality to LGBTQ employees.

With regards to textualism, what ultimately matters is which side can offer the clearest and, usually, the simplest explanation of how the text of the law dictates their preferred outcome. Just because Gorsuch bolstered his genuinely textualist bona fides in this case, doesn’t mean he won’t reverse himself again in the future, particularly on questions that implicate the interests of big business rather than merely those of social conservatives. Indeed, even Kavanaugh in dissent took pains to “acknowledge [the] millions of gay and lesbian Americans [who] have … battle[d] steep odds [and] can take pride in today’s result.”

Whether or not such victories will plausibly apply in future cases involving business interests, progressive advocates should test whether these glints presage Anthony Kennedy–like openness on at least some culture war issues. More generally, progressives should plumb for other cracks in the conservative legal coalition—which, it seems clearer, is no more a monolith than is the progressive legal coalition.