Last week, Justice Gorsuch held that Title VII of the 1964 Civil Rights Act outlaws workplace discrimination on the basis of sexual orientation or gender identity. To some it was gold leaf, a vindication of the decades-long fight for gay and transgender rights. To others it was blasphemy, an abdication of the constitutional duty of a judge. But leaving politics aside, it highlights a debate over one of the central theories of statutory interpretation: textualism. Both Gorsuch in the majority and Alito in dissent claim textualism is on their side. The fact that they come to dueling interpretations of a one-sentence statute suggests that textualism will yield unpredictable outcomes in statutory interpretation cases for years to come, irrespective of the typical “conservative” and “liberal” labels given to each of the Justices. Here is my analysis of Bostock v. Clayton County.
“Oyez, oyez, oyez!“That is the Marshal’s call, signaling to all that the Supreme Court is in session. Even though the Court is not meeting in person, the Oyezs this week rang loud and clear. The Court handed down two of the term’s biggest decisions. On Monday, Justice Neil Gorsuch held for a six-Justice majority that Title VII of the 1964 Civil Rights Act outlaws workplace discrimination on the basis of sexual orientation and gender identity. And on Thursday, Chief Justice Roberts held for a five-Justice majority that the Trump administration violated the Administrative Procedure Act when it sought to rescind Deferred Action for Childhood Arrivals, or “DACA.” Beyond these firecrackers, the Court also set off some streamers in its Monday orders list, denying a host of high-profile petitions concerning gun rights, qualified immunity, and “sanctuary” laws. In an ordinary week, the Supreme Court’s presence is not felt around the country. But this was no ordinary week. The Court made its mark—starting with Justice Gorsuch.