PLG Partner Ayesha N. Khan’s practice focuses on appellate litigation in state and federal courts nationwide. She writes a monthly column for The Daily Record, Maryland’s statewide business and legal newspaper, covering practical issues relevant to trial and appellate litigators. Her most recent column is reprinted here. Ms. Khan can be reached at akhan@potomaclaw.com or 202-836-7136.

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"We Are All Textualists Now"

Litigators often grapple with the meaning of statutes, constitutional provisions, and other legal texts. When we do so, we tend to canvas the provision’s history, to review the enactors’ stated intentions, and to assess the policy implications of the competing interpretations. But there’s a smarter place to start in today’s judicial climate: the text itself.

“Textualism,” which involves a close linguistic analysis of a governing text, was championed by the late Justice Antonin Scalia starting in the late 1980s. Prior to Justice Scalia’s arrival, the U.S. Supreme Court had taken the position that a court’s goal in interpreting a statute was to ascertain the legislature’s intent. Indeed, in a 1971 case called Citizens to Preserve Overton Park, Inc. v. Volpe, the high court suggested that a statute’s text must take a backseat to the purpose behind the enactment.

Justice Scalia started chipping away at that approach soon after his 1986 appointment. He began by taking issue with reliance on legislative history, arguing that legislators’ floor statements and committee reports were not a reliable indicator of what legislators actually thought. Over time, he took the position that the legislators’ intent didn’t even matter because it is the text that it is the law. It was his opinion that the judicial branch should effectuate a statute’s text even when it yields an unwise or unintended result.

That view gained ground during Justice Scalia’s tenure. It soon became commonplace for the U.S. Supreme Court to consult dictionaries and interpretive canons about statutory construction. Although the court stopped short of disregarding legislative intent altogether, Justice Scalia had flipped the order of the analysis, such that, by the time of his death, the judiciary considered legislative history, legislative intent, and policy implications to be secondary to a statutory text. As Justice Kagan has famously said, “we are all textualists now.”

Textualism’s high point

A textualist approach may very well have reached its zenith in the court’s recent decision in Bostock v. Clayton County, which held that employers’ negative treatment of gay and transgender individuals constitutes discrimination on account of sex under Title VII of the Civil Rights Act of 1964.

Title VII makes it “unlawful … for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual … because of such individual’s …sex.” The court began its analysis by scrutinizing these words, focusing on Congress’s decision to outlaw actions taken “because of” sex, not just actions taken solely because of sex. The court consulted Webster’s New Collegiate Dictionary on the meaning of the word “discriminate.”

And the court fixated on the statute’s reference to discrimination against “any individual,” which the court took to mean that it matters not how an employer treats women or men as a whole, but how it treats individual men and women. So even though an employer treats gay and transgender men and women the same way, any one instance of negative treatment amounts to discrimination on account of sex because a woman who dates women is treated differently than a man who dates women and a man whose sex at birth was assigned as female is treated differently than a woman whose sex at birth was assigned as female. Thus, each instance of disparate treatment amounts to discrimination against the individual because of his or her sex.

The majority did not care whether the legislators who enacted Title VII intended this result or that the U.S. Congress had subsequently declined to extend Title VII’s protections to gay and transgender individuals. As the court put it, “When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.” That sure sounds like something Justice Scalia could have written (though I have my doubts that Justice Scalia would have joined the Bostock majority given how consistently he opposed recognition of LGBTQ rights, at least from a constitutional, as opposed to statutory, perspective).

A notable author

The most notable aspect of the Bostock opinion is that it was penned by Justice Neil Gorsuch, President Trump’s first Supreme Court appointee. The religious right sold its soul to Trump in return for judicial appointments; this can’t be what they bargained for.

Gorsuch clerked for Justice Kennedy, who was appointed by a Republican President but was a vocal champion of the rights of the LGBTQ community. Justice Kennedy authored the majority opinions in Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges, all of which relied on soaring rhetoric about the dignity that is due our LGBTQ brothers and sisters. That kind of rhetoric is lacking in Bostock, but it’s hard to miss the other parallels.

At a minimum, the ruling in Bostock demonstrates that textualist arguments can appeal to judges on both sides of the political spectrum. So dust off those dictionaries, especially those published close in time to the enactment of the text with which you are working. Pay attention to grammar and canons of statutory interpretation. Notice words elsewhere in the statute, which can shed light on the meaning of the words at issue. And don’t overlook punctuation, which can, among other things, suggest that a clause modifies one portion of a sentence but not the other. These are some of the many tools in a textualist’s box.

Turning to that toolkit won’t guarantee success. Textualism can be as malleable as any other theory of interpretation and can itself be put to ideological ends. Scholars have shown that resort to dictionaries can be ad hoc and subjective, and that statutory canons can yield conflicting results. Even so, a textualist argument is still a good place to start.

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