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Could the Supreme Court’s Landmark L.G.B.T.-Rights Decision Help Lead to the Dismantling of Affirmative Action?


In 1946, William K. Wimsatt and Monroe C. Beardsley argued, in their classic essay, “The Intentional Fallacy,” that critics interpreting a literary work should cast aside pursuit of the author’s intent. “The poem belongs to the public,” they wrote, because “it is embodied in language, the peculiar possession of the public.” The New Criticism, a movement that dominated the academic study of literature in mid-century, asserted that only close analysis of the words and structure of the text—not external knowledge about the author, politics, morality, or a reader’s feelings—was the key to understanding its meaning.

Salvatore Eugene Scalia, a professor of Italian literature at Brooklyn College, was an adherent of this theory. He also advocated for “literalness” in reading and translation, to avoid “yielding to the temptation” to follow one’s own language’s conventions in interpreting the words of the text. The New Criticism fell from prominence in the nineteen-eighties, but its impact became discernible in another field, through Professor Scalia’s only child, who was appointed to the Supreme Court in 1986, the same year that the elder Scalia died. Justice Antonin Scalia became the country’s most important expositor of textualism, the influential method of legal interpretation wherein “the text is the law, and it is the text that must be observed,” regardless of what lawmakers may have intended in passing the law. Since the nineteen-eighties, textualism has been favored by legal conservatives—but, in more recent decades, its focus on the words of a text has become influential with liberal judges, too.

Last Monday, under the shadow of Antonin Scalia, who died in 2016, the current conservative Justices aired their strife over his textualist legacy in Bostock v. Clayton County, a landmark gay-and-transgender-rights case. Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate “because of” an “individual’s race, color, religion, sex, or national origin.” All the jurists agreed that Congress did not have in mind sexual orientation or gender identity. But Justice Neil Gorsuch, writing for the Court’s majority, joined by Chief Justice John Roberts and the four liberal Justices, held that Title VII’s ban on discrimination based on sex has always meant protection for gay and transgender individuals. This tremendously significant decision will transform the workplace anti-discrimination landscape for gay and transgender people, while its logic stands to have wide-ranging effects well beyond the workplace and those communities.

Gorsuch based the decision on an avowedly textualist interpretation, saying that “only the words on the page constitute the law adopted by Congress and approved by the President,” not “extratextual sources and our own imaginations.” Closely reading the sex-discrimination ban, Gorsuch observed that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” That is, an employer who fires someone for being gay or transgender necessarily acts based on behavior or traits—for example, marrying, or living as, a man—that are deemed unacceptable because that employee is not of the opposite sex. In holding that such an action is prohibited by Title VII, Gorsuch said that was “no more than the straightforward application of legal terms with plain and settled meanings.” Although he had said at the oral argument, last October, that it was “really close, really close,” and wondered about a “massive social upheaval,” his opinion ultimately concluded that “no ambiguity exists.”

Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh strongly disagreed, saying that Gorsuch’s interpretation mangled the text, and textualism along with it. Alito, joined by Thomas, wrote that “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.” He likened Gorsuch’s opinion to “a pirate ship” that “sails under a textualist flag,” pretending to be purely textualist but really doing what Scalia “excoriated”—updating old statutes to fit contemporary values. To Alito, it was clear that Americans reading the law in 1964 “would not have dreamed that discrimination because of sex meant discrimination because of sexual orientation, much less gender identity.” Indeed, he detailed, over multiple pages, how our society at the time treated homosexuality as a mental disorder and a crime. He added that “to its credit, our society has now come to recognize the injustice of past practices, and this recognition provides the impetus to ‘update’ Title VII. But that is not our job.” He said the Court’s decision was “a brazen abuse of our authority.”

Justice Kavanaugh took a more conciliatory tone, acknowledging that gay people “ ‘cannot be treated as social outcasts or as inferior in dignity and worth,’ ” but he did so, tellingly, by quoting from Justice Anthony Kennedy’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which held in favor of a baker who refused to make a wedding cake for a gay couple. On the larger point, Kavanaugh agreed with Alito that Gorsuch was being a bad textualist. According to Kavanaugh, even if firing a man for being gay is an action that, in the most literal sense, is taken “because of” his “sex,” a reasonable reader of the phrase “discriminate because of sex” would see that it does not refer to that kind of discrimination. To Kavanaugh, it was clear that, in common parlance, “sexual orientation discrimination is distinct from, and not a form of, sex discrimination,” and not recognizing that “destabilizes the rule of law” and “thwarts democratic accountability.” Invoking the separation of powers, he said that Gorsuch was usurping Congress’s role to amend a statute.

Among the surprises of this milestone gay-and-transgender-rights decision was that no liberal Justices wrote at all, leaving their conservative colleagues to lambaste one another over whether the Court’s method was a grave betrayal of Scalia. Each opinion appeared to accept the terms of the textualist enterprise, arguing only about whether it was being done correctly, and what the ordinary meaning of the words were in the context of 1964. As Justice Elena Kagan said in an interview in 2015, “I think we’re all textualists now in a way that just was not remotely true when Justice Scalia joined the bench.” She went on to explain that “the center of gravity has moved” toward his method—toward “the idea that, yes, Congress has written something and your job truly is to read and interpret it, and that means staring at the words on the page.”

Textualism’s main competitor has been “purposivism,” which holds that a judge should identify the purpose of the statute, and if there is a conflict between the text and the “spirit” of a law, the latter wins out. Conservatives became distrustful of the indeterminacy of purposivism in the nineteen-eighties, in reaction to several decades of a liberal Court expanding rights and protections based on broad reasoning about laws’ social purposes. Scalia believed that the “departure from text” was incompatible with democracy, even “tyrannical,” because the quixotic search for legislative intent would, in practice, end with judges imposing their views of what the legislature should have done. Textualism was therefore presented as a way to limit the discretion of judges and prevent them from engaging in lawmaking, which belongs to the legislature. But Scalia’s extreme insistence on excluding key evidence of intent—particularly legislative history—could sometimes result in textualists actually thwarting what the legislature evidently meant to accomplish.

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