Living Textualism

In 2020, the Court held in Bostock v. Clayton County that discrimination on the basis of sexual orientation and gender identity is discrimination “because of sex” and therefore violates Title VII of the 1964 Civil Rights Act. That landmark holding extended federal antidiscrimination protection to millions of gay and transgender workers. But that is not the only axis on which Bostock was transformative. For the past twenty-five years, the Court has adopted a living constitutionalist approach to gay rights—an approach that takes account of “evolving understanding[s] of the meaning of equality” in interpreting old laws. Bostock rejects living constitutionalism in favor of textualism—an approach that eschews “evolving understandings” and seeks to enforce a law’s original public meaning: the meaning the “words on the page [would] have conveyed to the reasonable speaker of English in the relevant audience at the time of enactment.” As a result, Bostock engages in a very different sort of analysis from the Court’s other gay rights decisions. It does not rely on the “new insights and societal understandings” that played a central role in the same-sex marriage decisions. In fact, the Court in Bostock blames “societal understandings” over the past half-century for clouding our vision and preventing us from recognizing that, as a matter of ordinary meaning, Title VII’s prohibition on sex discrimination has always barred discrimination against gay and transgender people. Commentators have hailed Bostock as a “triumph for textualism”; “a new highwater mark for textualism, as District of Columbia v. Heller was for originalism” confirmation of Justice Elena Kagan’s endlessly quoted observation that “[w]e’re all textualists now.” This assessment stems in part from the fact that all of the opinions in Bostock—the majority and the two dissents—embrace textualism. Not too long ago, textualism was an insurgent methodology. It took shape alongside its close cousin, originalism, as part of a campaign by Reagan-era conservatives to develop “antidotes to the ‘judicial activism’ of the Warren and Burger Courts.” Those early conservative adopters argued that other modes of statutory interpretation (purposivism, pluralism) do not yield determinate answers and thus invite “judges to imbue authoritative texts with their own policy preferences”—preferences that inevitably reflect contemporary (elite) social values and not the values of the people who democratically enacted the law. Textualism was intended to combat judicial presentism and policymaking by providing judges with a “single truthmaker”: original public meaning. When judges apply this meaning, they are—on the textualist’s view—applying the law as written, the law that satisfied the requirements of bicameralism and presentment, the law that reflects the will of the people and not the preferences of today’s judiciary