Living Textualism

Abstract

The Court’s landmark decision in Bostock v. Clayton County, holding that Title VII’s prohibition on sex discrimination prohibits discrimination on the basis of sexual orientation and gender identity, was widely hailed as a triumph for textualism and a vindication of its neutrality and objectivity. Textualism has typically been associated with conservative judges; critics have argued that, at bottom, it’s a vehicle for implementing conservative policy preferences. Proponents of textualism have argued that Bostock refutes such criticisms: it demonstrates that enforcing a text’s “original public meaning” can yield progressive or conservative results, depending on what the text says.

It is true that textualism can yield progressive or conservative results. Bostock demonstrates as much—but not, this Article argues, for the reasons textualism’s proponents suggest. Bostock does not demonstrate that textualism is neutral or objective, or that it enables judges to put aside contemporary social values. What Bostock demonstrates is that textualism is no more capable of providing a neutral truthmaker or of cabining the influence of evolving social values than any other leading method of statutory interpretation. The Justices in Bostock all claim to have recovered Title VII’s original public meaning using neutral methods and tools such as dictionaries and corpus linguistics. But Bostock shows that original public meaning is not something judges find, but something they produce—and something they need to produce because, in the kind of conflicts that reach the Court, there generally is not a single truth of the matter from a semantic standpoint. The title Living Textualism is meant to capture this creative process, and to suggest that textualism is no less “living” than any other leading method of statutory interpretation. Indeed, this Article shows that textualism is a form of dynamic statutory interpretation—one that proceeds by making and remaking the original public meaning of contested legal texts over time.

This Article argues that original public meaning is made primarily at shadow decision points: generally unacknowledged, often outcome-determinative choices about how to interpret legal texts that are framed as methodological, but that are typically fueled by substantive extratextual concerns. Examples of shadow decision points include: which bits of text to subject to textualist analysis; whether to consult a dictionary or a corpus linguistics database or both; which definition of the disputed text to select; how literally to take that definition; whether to deem the text ambiguous, and what quantum of ambiguity is sufficient to permit the consultation of some wider unspecified set of extratextual sources; and how heavily to weigh original expected applications in determining original public meaning. This Article examines how the Justices in Bostock construct Title VII’s original public meaning at these shadow decision points. In so doing, it reveals the serious democratic accountability and rule-of-law problems that follow from the textualist focus on original public meaning. Critics often accuse textualists and originalists, who privilege original public meaning, of granting too much authority to the dead hand of the past. This Article argues that the more significant problem is not that of the dead hand, but of the Court exerting its own will, making its own inevitably value-laden choices, falsely claiming its hands were tied.

Keywords: textualism, statutory interpretation, originalism, Title VII, Bostock, sex, LGBT, gay rights, transgender rights, gender identity, discrimination