In their recent holding in Bostock v. Clayton Cty., the Supreme Court held that use of the word “sex” in Title VII of the Civil Rights Act of 1964 allows for court actions to redress gender-based discriminatory acts. In a majority opinion by Justice Neil Gorsuch, the Court held:
The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. . . . We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.
Dissenting in Bostock, Justice Samuel Alito fiercely proclaimed that the majority’s decision represented judicial legislation at its worst. But was it really? Conversely, was Justice Alito’s opinion itself an example of judicial legislation – or at the very least an attempt to judicially legislate? Let’s explore these possibilities, and others.
Justice Alito wrote that the statute at hand did not actually prohibit discrimination-based homosexuality or transgender status, but he went further, referring to the majority opinion as simply “legislation”:
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.
The Bostock opinions, both Justice Gorsuch’s majority opinion and Justice Alito’s dissenting opinion, are on their face remarkable in their congruence. The opinions find these two Justices each claiming for himself the mantle of legislative interpretation – “textualism,” made popular by the late Justice Antonin Scalia. Specifically, both opinions claim precisely the same inspiration in coming to their respective judicial conclusions. Yet their opinions come to precisely opposite conclusions. Let us dig deeper to determine what these two justices were really up to. Were either of these opinions simply the application of a Scalia-like formulaic approach to textualism? Did either represent an attempt at judicial legislation? Or was either – gasp – motivated by extra-judicial or political concerns?
Clearly, the life experiences that judges bring to the court can easily be confused with judicial biases. As anyone who has ever decided or perhaps even argued a case would likely admit, we are all prone to biases, both realized and unrealized. This is especially true of confirmation bias, e.g., believing what we want to believe, and in the case of judging, believing selected facts to achieve a desired result. With apologies to George Orwell, we are all human, albeit some of us more human than others, and that, of course, includes judges.
Back to Bostock: this was obviously not the first time a justice of the Supreme Court has complained about legislating from the bench. In numerous opinions, and especially in concurrences and dissents, Justice Scalia was well known for advocating for a textualist approach to statutory review, going back to his first term on the bench and beyond. Justice Clarence Thomas, the only other justice to join Justice Alito’s dissenting opinion in Bostock, has done likewise on numerous occasions. Indeed, one observer’s 2018 analysis of the Court’s opinions from 2013 to 2016 has found that Justice Thomas followed an overtly textualist approach more than any other justice.
But just what exactly is textualism, and what does it have to do with the charge of judicial legislation leveled here by Justice Alito? A good astrophysical analogy concerning Justice Scalia’s textualist approach relates to the beginning of the universe – it matters not how the universe was formed, only that it was. Big bang theory? Not important. So too with legislation: Justice Scalia professed not to be concerned with what was discussed or debated before enactment; as far as he was concerned, a statute’s life begins only at the moment of conception, e.g., enactment.
So, was the Bostock construction of a 1964 statute a form of “retroactive legislation,” something which Justice John Paul Stevens, with a tip of his hat to Justice Scalia, had roundly condemned in his 1994 majority opinion in Landsgraf v. USI Film Products?
And what shall we make of Justice Alito’s complaint that Justice Gorsuch’s majority opinion in Bostock was actually a judicial farce, a masquerade? And what about the comment by Justice Alito accusing Justice Gorsuch’s majority opinion of “considerable audacity” in using Justice Scalia’s textualist holdings in support?
And what of Justice Alito’s further complaint that because subsequent Congresses failed to pass legislation that specifically included homosexuality and transgender status, it would be a mistake to read that into the statute now?
Perhaps to enhance his textualist bona fides, Justice Gorsuch parried that particular broadside as “particularly dangerous” and referenced a concurrence from Justice Scalia that stated: “Arguments based on subsequent legislative history . . . should not be taken seriously, not even in a footnote.”
And what does the phrase “judicial legislation” even refer to? Judges make law all the time, i.e., the doctrine of standing has minimal, if any, legislative basis. What about the “harmless error” doctrine? Was this doctrine not made up of judicial cloth? Most recently, what about the four-part test that Chief Justice Roberts announced in Trump v. Mazars USA, Ltd. for determining when Congress has a right to subpoena presidential papers? Perhaps “judicial legislation” simply means whatever any particular judge says it means in the context of any given case.
Although textualists typically profess to a pro-democratic deference to elected legislative bodies, it is also reasonable to consider that there may be an arrogance to textualism that smacks of scolding of legislatures for not doing their jobs properly, as if it is somehow the Court’s job to do that.
This is made all the more interesting by pre-Bostock criticism of Justice Gorsuch as himself being anti-democratic. No doubt some of these criticisms were motivated by the irony of Justice Gorsuch’s own words before taking the bench on the Circuit Court of Appeals, in a 2005 article entitled Liberals ’N’ Lawsuits:
[T]he politicization of the judiciary undermines the only real asset it has – its independence. . . . American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.
With this as background, it is perhaps remarkable that Justice Alito decided to strongly rebuke his fellow justice as being, in essence, a hypocrite – one who talks the judicial talk, but doesn’t walk the judicial walk:
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. See A. Scalia, A Matter of Interpretation 22 (1997). If the Court finds it appropriate to adopt this theory, it should own up to what it is doing [footnote omitted].
Was this criticism fair? Or was Justice Alito merely waving the textualist flag himself to get to his own desired quasi-legislative result? Further, much has been written about the supposed ideological make-up of the Roberts Court. But then was the Bostock holding really ideologically based? Or was a heaping dash of textualism simply thrown into the majority opinion by Justice Gorsuch in order to shield from a charge of judicial legislation, as was leveled by Justice Alito? Or was textualism used to hide an otherwise desired political result, as a form of confirmation bias? And what do we make of this blunt battle of words between two justices otherwise usually thought to be of the same ideological stripe?
And so does Justice Alito have a point in his complaint that this represents judicial legislation at its worst? Yet perhaps both this holding and Justice Alito’s dissent can be seen as nothing more than after-the-fact rationalizations designed to reach a desired outcome. Suffice to say, this is not what we learned in law school about how the giants of the bench came to their judicial conclusions. And it might not even be the calling of “balls and strikes” judicial umpiring that Chief Justice Roberts famously referred to as his preferred judging approach. It may well just be that both the so-called “conservatives” and “liberals” on the bench will sometimes fashion a textualist argument to arrive at their desired result. In fact, all nine justices here, including Justice Gorsuch in his majority opinion, appear to fly the textualist flag proudly.
So what does this battle for the soul of textualism portend concerning the future direction of the Court? Will 5 to 4 decisions continue at the same rate as they always have in the Roberts Court? Or has the bloom come off the rose for the so-called conservative wing of the Court, and does Bostock portend future similar squabbles between the justices on textualism or on anything else?
The answer may well be that intra-Court squabbling will still take a back seat to the justices’ individual ideological and world-view biases. This has been the case in the past where other justices have been sharply critical of one another, and there is no reason to think that past patterns will not continue. Moreover, Justices Gorsuch and Alito have aligned themselves on the same side of the judicial fence far more than they have differed from one another. Indeed, despite a sizeable age difference – 17 years – they are essentially cut out of the same Federalist Society cloth, and there is of yet no reason to believe that this textualism-related schism shall affect other cases to come. How will this determine the future battleground cases to come, on reproductive rights, on voting rights, on criminal and civil justice? There is no easy way to prognosticate, but it can be reasonably assumed that the judicial philosophy of each justice will find its way toward each justice’s desired result.
Likewise, what does this legal warfare between these two justices tell us about the process for Senate confirmation of future presidential nominees to the Supreme Court? Will pitched and heightened questioning take place over a nominee’s views of textualism? Will each nominee be asked if he or she agrees with the judicial philosophy of Justice Scalia?
Time will tell, but the Gorsuch v. Alito split on textualism can probably best be explained by a “means to an end”-type analysis. Both justices presumably knew the result they wished to obtain, and both used a textualist analysis to land in two different places.
Yet if Chico Marx were somehow a justice of the United States Supreme Court, he might have parsed Title VII of the Civil Rights Law of 1964 by saying: “Who are you going to believe, me or your own eyes?” In other words, is Justice Gorsuch telling us we should just believe him or our own eyes (i.e., the printed text of the statute on the page)? And is Justice Alito effectively paraphrasing another great sage, Yogi Berra, in telling us “no, the statute doesn’t really say what it says”?
Like beauty, the answer to these impertinent questions likely lies in the eyes of us, the opinion-reading beholders. Loaded as we are with our own cognitive and political biases as well as – perhaps – our own guiding principles of statutory interpretation, we must decide for ourselves where we land in this back and forth between the justices about the art of judging. As concerns the principles by which we view these cases, the last word goes to another propagandist of Marxist dogma, Groucho: “These are my principles. If you don’t like them, I have others.” Indeed, we all have our “principles,” and the justices of our highest court have their own too.
. 140 S. Ct.1731 (2020).
. 42 U. S. C. § 2000e-2(a)(1) (Employers may not “fail or refuse to hire or . . . discharge any individual, or otherwise . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.”).
. Bostock, 140 S. Ct. at 1741, 1746–47.
. Id. at 1754 (dissenting op.).
. See, e.g. “Do Judges Contribute to Injustices? A Conversation with Judge Jed Rakoff,” ABA Journal, April 13, 2017; https://www.abajournal.com/news/article/judge_jed_rakoff_joel_cohen_broken_scales.
. See “Animal Farm” (1945) (“All animals are equal, but some animals are more equal than others”).
. Among other appellations, Justice Scalia has been referred to as a “text maniac,” no doubt referable to his dogmatically textualist approach to statutory interpretation. https://dictionary.reverso.net/english-spanish/nominalist.
. Justice Scalia spoke approvingly of “the venerable principle that if the language of a statute is clear, that language must be given effect – at least in the absence of a patent absurdity.” INS v. Cardoza-Fonseca, 480 US 421,452 (1987) (J.Scalia, concurring in the judgment).
. See, e.g. Block v. Meese, 793 F. 2d 1303, 1309–10 (1986) (“To legislate is to generalize, and a law motivated by a desire to eliminate a particular abuse often sweeps within its reach activities that do not themselves display that abuse. . . . More fundamentally, however, both the abstract speculation and the reality of the legislative history are beside the point. We do not sit to rewrite laws so that they may address more precisely the particular problems Congress had in mind. There is simply no language within the text of the present enactment that would enable importation of the limitation appellants suggest”).
. Adam Feldman, “A New Era in SCOTUS Textualism,” Empirical SCOTUS, Jan. 3, 2018, https://empiricalscotus.com/2018/01/03/scotus-textualism.
. “Under the big bang theory of creation, the universe is the product of a gigantic explosion, before which there was neither time nor space. It is meaningless to ask what produced the big bang.” This is also Antonin Scalia’s view of the United States Code. The statute exists – it is meaningless to ask what produced it. History begins only with the big bang, just as a statute’s history begins only with its enactment. “Legislative history” thus does not exist. Or perhaps the more precise analogy is to the formation of matter in the initial chaos: matter and statutes are both the product of a disordered, incoherent, unconscious, anarchic sequence of events. Justice Scalia trusts statutory text, not the process of its creation.” Michael Herz, “Textualism and Taboo: Interpretation and Deference for Justice Scalia,” Cardozo L. Rev., 1990, p. 1663. https://heinonline.org/HOL/LandingPage?handle=hein.journals/cdozo12&div=69&id=&page=.
 Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994) (“As Justice Scalia has demonstrated, the presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. For that reason, the “principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.” Kaiser, 494 U. S. at 855 (Scalia, J., concurring).”)
. Bostock v. Clayton Cty.. 140 S. Ct. at 1774 (Alito, J., dissenting).
. Id. (Alito, J., dissenting).
. Id. at 1834 (Alito, J., dissenting).
. Id. at 1747; Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 650 (1990).
. Sullivan v. Finkelstein, 496 U. S. 617, 632 (1990) (Scalia, J., concurring).
. 140 S. Ct. 2019, 2024 (2020).
. See, e.g., Andrei Marmor, “The Immorality of Textualism,” LAL Rev., 2004, p. 2063, 2069–70, https://heinonline.org/HOL/LandingPage?handle=hein.journals/lla38&div=60&id=&page= (“Why should it be the business of the courts to educate the legislatureon how to draft statutes and enact laws? Is it because nobody else is there to do it? Surely that is false. Countless interest groups, watchdogs, lobbyists, the general press, and eventually, the public at large scrutinize legislators during campaigns and elections But surely, clarity is only one of the virtues of good legislation. Legislation often has to reach a compromise between conflicting considerations, and then other institutions, like agencies and courts, should fill in the gaps. In any case, it is surely false to assume that the courts are the only institution that scrutinizes legislative drafting. Many other institutions fulfill a similar function, and they all have an important advantage over the courts: they do not need to sacrifice the interest of individuals in order to make their point. Note that this question about the courts’ role in educating the legislature is even more pressing when considered on textualism’s own political grounds. If textualists are so concerned about respect for democratic procedures, it must be because they attach a high value to the respect we owe to the authority of legislative institutions. But one does not normally express respect for the authority of another by trying to educate the latter. In this respect, textualism displays a certain arrogance towards the legislature that is not easy to reconcile with its alleged respect for the authority of democratic institutions.”).
. Mark B. Baer, “Should Supreme Court Justices Believe in Democracy? Neil Gorsuch’s Comments Indicate that He Is Extremely Biased and Anti-Democracy,” Psychology Today, Feb. 3, 2017, https://www.psychologytoday.com/us/blog/empathy-and-relationships/201702/should-supreme-court-justices-believe-in-democracy.
. Neil Gorsuch, “Liberals ’N’ Lawsuits,” National Review, Feb. 7, 2005, https://www.nationalreview.com/2005/02/liberalsnlawsuits-joseph-6.
. See also Bostock v. Clayton Cty.. 140 S. Ct. at 1784, in which Justice Alito closes his opinion by stating: “But the authority of this Court is limited to saying what the law is. The Court itself recognizes this: ‘The place to make new legislation . . . lies in Congress. When it comes to statutory interpretation, our role is limited to applying the law’s demands as faithfully as we can in the cases that come before us.’ Ante, at 31. It is easy to utter such words. If only the Court would live by them. I respectfully dissent.”
. The facile left vs. right breakdown of the Court is sometimes intellectually lazy, and – as in Bostock – sometimes doesn’t account for textualist reasoning. And then sometimes this facile breakdown is simply not so, e.g. Daimler v. Bauman, 134 S. Ct. 746 (2014), where the court unanimously, with Justice Sotomayor concurring in the result, favored an unprecedented pro-big business/anti-consumer interpretation of International Shoe Co. v. Washington, 326 U.S. 310 (1945), which broadened due process protections for non-domiciliary corporations in a personal jurisdiction context.
. During his confirmation hearings in 2005, Justice Roberts testified: “My job is to call balls and strikes and not to pitch or bat.” CNN.com, Sept. 12, 2005, https://www.cnn.com/2005/POLITICS/09/12/roberts.statement.
. See, e.g., Lance N. Long and William F. Christensen,” When Justices (Subconsciously) Attack: The Theory of Argumentative Threat and the Supreme Court” Or. L. Rev., 2012, https://heinonline.org/HOL/LandingPage?handle=hein.journals/orglr91&div=31&id=&page= (“This Article argues that in their briefs and opinions, lawyers and judges seem to react linguistically to a perceived threat. This section first addresses current theories of linguistic response to threat. It then presents the Authors’ study of Supreme Court opinions as an example of argumentative threat and shows how the Supreme Court Justices’ response to argumentative threat is consistent with other social psychology theories. In essence, the Justices may respond to perceived threats just like everybody else.”)
. For example, Justices Gorsuch and Alito were aligned in 78% of cases decided in the October 2019 Term, and 10 of the 14 five to four decisions during this term featured Roberts, Thomas, Alito, Gorsuch, and Kavanaugh in the majority, and Breyer, Ginsburg, Kagan, and Sotomayor in dissent. https://www.scotusblog.com/2020/07/final-stat-pack-for-october-term-2019.
. From the 1932 Marx Brothers movie, Duck Soup: Teasdale: Your Excellency, I thought you left. Chicolini: Oh no. I no leave. Teasdale: But I saw you with my own eyes. Chicolini: Well, who ya gonna believe me or your own eyes? https://quoteinvestigator.com/2018/07/31/believe-eyes/.
. “I really didn’t say everything I said.” See, e.g., Steve Marcus, “Color Yogi a Happy Guy; Now wearing Astros’ rainbow uniform, Berra’s relaxed, popular” Newsday (Nassau and Suffolk Edition), February 24, 1985, p. 92, https://quoteinvestigator.com/2012/12/30/yogi-didnt-say. Contrast this Berra quote to one recently incorrectly attributed to Mr. Berra by Ambassador John Bolton in his otherwise interesting book, The Room Where It Happened, p. 489, “Don’t nobody here know how to play this game?” However, Yogi Berra never said this, which was famously stated by Casey Stengel in 1962 as the manager of the New York Mets. https://www.baseball-almanac.com/quotes/quosteng.shtml.
. Fred R. Shapiro, The Yale Book of Quotations, 2006, Section Julius Henry ‘Groucho’ Marx, p. 498, Yale University Press, New Haven. But see https://quoteinvestigator.com/2010/05/09/groucho-principles/#note-237-1.