//  10/8/19  //  Quick Reactions

As part of his recent book tour, Justice Neil Gorsuch had the occasion to share the “two rules” he gives to his law clerks.  In his words:

"I tell my law clerks I have two rules -- only two rules -- if you follow them, you're going to be just fine.” "Rule number one: Don't make it up -- follow the law. Rule number two: when everybody else around you is yelling at you, asking you to make it up and condemning you for not making it up, refer to rule number one."

OK, sounds simple enough. Let’s see how good he is (or might be) at following his own rules. Just for kicks, let’s consider the Title VII cases the Court heard today.

 The cases (Bostock v. Clayton County; Altitude Express v. Zarda; and Harris Funeral Homes v. EEOC) present the question whether discrimination against individuals who are gay, lesbian, bisexual, transgender, or queer constitutes discrimination on the basis of such individual’s sex in violation of Title VII.

In the oral argument, Justice Gorsuch explained why it is conceptually, analytically, and linguistically discrimination on the basis of sex to fire a man for dating a man (rather than a woman), or to fire a person who identifies as female despite being assigned male at birth.

From the Bostock/Zarda transcript: 

JUSTICE GORSUCH: Well, it certainly may not answer -- isolate the sole or proximate cause, but I -- I think the -- the argument on the other side is the language of the statute has a but-for causation standard, a more generous causation standard. So perhaps there are two causal factors at work here. But isn't one of them sex in the narrow sense of -- of -- of biological gender? 

Ed: The answer to that question is yes.

Again:

JUSTICE GORSUCH: And one -- one would -- in what -- in what linguistic formulation would one -- would one say that sex, biological gender, has nothing to do with what happened in this case?

 

Ed: The answer to that question is “Not a very coherent one.”

 Or a third time: 

JUSTICE GORSUCH: Let's do truth serum, okay? Wouldn't -- wouldn't the employer maybe say it's because this was -- this person was a man who liked other men? And isn't that first part sex?

 

 Ed: The answer to that question is also yes.

 And then some other guy named Neil Gorsuch started asking questions in Harris Homes. From the Harris Homes transcript:

JUSTICE GORSUCH: -- I'm with you on the textual evidence. It's close, okay? We're not talking about extra-textual stuff. We're -- we're talking about the text. It's close. The judge finds it very close. At the end of the day, should he or she take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that -- that Congress didn't think about it -- and that -- that is more effective -- more appropriate a legislative rather than a judicial function?

 

Ed: Whoa there, imposter Justice Gorsuch! I’m pretty sure sounds like someone “yelling at you” about the “consequences” (massive social upheaval) of your decision and asking you to “make up” an exception to textualism (where a judge thinks or is told there will be “massive social upheaval” or that “Congress didn’t think about it”). But the rules are the rules—the text means what the text says, even if you think Congress didn’t think about the meaning of its words or particular applications of them, and even if people are “yelling at you” about “social upheaval.”

In brief: There is no social upheaval exception to textualism.* As Justice Gorsuch said elsewhere in Harris Homes, "the question is a matter of the judicial role." Indeed, it is.

The rules are either the rules, or they’re not. We’ll see whether Justice Gorsuch follows them.

*I do not agree with the claim that there will be “social upheaval” if the Court interprets Title VII according to the words it uses. The Court has already interpreted Title VII in ways that could have generated social upheaval or that were contrary to the expectations of Congress or that extended the statute to circumstances Congress didn’t think about or anticipate. Think about … all of sexual harassment law, sex stereotyping, or the Court’s ruling that Title VII prohibits same-sex sexual harassment.

@LeahLitman


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