Justice Elena Kagan famously said, “We’re all textualist now.” But as a recent Wall Street Journal editorial points out, a world of difference exists between claiming textualism and applying it. With a conservative majority at least nominally established on the U.S. Supreme Court, textualism has the chance to become a defining doctrine, but it won’t be an easy road. It is worth taking heed of what the WSJ has to say.
Two cases currently before the Supreme Court implicate textualism: Bostock v. Clayton County and R.G. & G.R. Harris Funeral Homes v. EEOC. Both require interpretation of Title VII. The straightforward language of the statute famously bans discrimination on the grounds of “race, color, religion, sex, or national origin.”
Plaintiffs bringing the cases state they were fired because of their sexual orientation. They claim Title VII should apply to their situations since sexual orientation falls under the grounds of “sex.”
But for strict textualists, “sex” means the binary classification understood when the statute was passed in 1964, i.e. discrimination on the grounds of being a man or woman. Society may have expanded its definition of sex, but the statute never did. Congress alone can update Title VII to include sexual orientation.
Justice Kagan has another way of looking at it, one supporting the plaintiffs. The WSJ describes it thus, “[During oral argument, Justice Kagan] offered a hypothetical case in which a company fires a woman employee for dating another woman but wouldn’t have fired a man for dating a woman. Voila, discrimination based on sex. ”
While Justice Kagan’s broadening of the definition of sex is unsurprising, the real twist is that she might have convinced Justice Gorsuch to go along with it. So far, Justice Gorsuch has positioned himself as the intellectual successor of Justice Scalia. A move towards Justice Kagan’s definition would certainly shift him away from Justice Scalia’s originalism. But some of his comments during oral arguments seem to imply his willingness to do just that.
They’re cases worth watching.