According to Kavanaugh, even if firing a man for being gay is an action that, in the most literal sense, is taken “because of” his “sex,” a reasonable reader of the phrase “discriminate because of sex” would see that it does not refer to that kind of discrimination. TimesMachine is an exclusive benefit for home delivery and digital subscribers. The decision protecting gay and transgender individuals from discrimination may have laid the groundwork for a textualist case against race-conscious school-admissions policies.
This is a digitized version of an article from The Times’s print archive, before the start of online publication in 1996. Last Monday, under the shadow of Antonin Scalia, who died in 2016, the current conservative Justices aired their strife over his textualist legacy in Bostock v. Clayton County, a landmark gay-and-transgender-rights case. To Kavanaugh, it was clear that, in common parlance, “sexual orientation discrimination is distinct from, and not a form of, sex discrimination,” and not recognizing that “destabilizes the rule of law” and “thwarts democratic accountability.” Invoking the separation of powers, he said that Gorsuch was usurping Congress’s role to amend a statute. Justice Alito warned that “the entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning,” and provided an extraordinary—and quite helpful—fifty-two-page appendix, including more than a hundred federal statutes that prohibit discrimination because of “sex,” and that will surely be affected by Bostock’s logic. The woman at the center of the first transgender-rights case to come before the Supreme Court died before a decision was handed down. According to Eskridge, a judge should implement the general goals of an old statute by adapting its meaning to the changed social context, in ways that might well contradict the text’s semantic meaning or its specific directives. Bostock opened by acknowledging that “sometimes small gestures can have unexpected consequences,” and that “major initiatives practically guarantee” unexpected consequences.
So, too, we can see that textualism leads to acutely different consequences in the hands of different interpreters, unmoored from its ideological associations—driving home that interpretive methods, no less than texts, evade control by their creators and expounders. Secretary of Labor Eugene Scalia, a member of President Donald Trump’s cabinet and his Covid-19 task force, on the administration's effort to revive the economy. Such a non-textualist approach could, of course, lead to the same result that Gorsuch reached. Justice Antonin Scalia became the country’s most important expositor of textualism, the influential method of legal interpretation wherein “the text is the law, and it is the text that must be observed,” regardless of what lawmakers may have intended in passing the law.
In Steelworkers v. Weber, in 1979, the Court held that race-based affirmative action was legal under Title VII. Gorsuch offers a hint of that logic, writing that Title VII protects “individuals rather than groups,” and that any scheme that treats individuals differently because of their protected characteristic is unlawful, “even if the scheme promotes equality at the group level” and is “motivated by a wish to achieve classwide equality.” These words reveal that he has affirmative action in his sights, because affirmative-action policies necessarily consider race in their treatment of individuals.
The sharp conflict among conservatives also underscored that textualism is no less indeterminate than other methods of interpretation.
But Scalia’s extreme insistence on excluding key evidence of intent—particularly legislative history—could sometimes result in textualists actually thwarting what the legislature evidently meant to accomplish. See the article in its original context from.
We obsess over interpretation because it gives rights and takes them away. The New Criticism fell from prominence in the nineteen-eighties, but its impact became discernible in another field, through Professor Scalia’s only child, who was appointed to the Supreme Court in 1986, the same year that the elder Scalia died. Salvatore Eugene Scalia, a professor of Italian literature at Brooklyn College, was an adherent of this theory. © 2020 Condé Nast. He was 86 years old and lived in Trenton. Since the nineteen-eighties, textualism has been favored by legal conservatives—but, in more recent decades, its focus on the words of a text has become influential with liberal judges, too.
In holding that such an action is prohibited by Title VII, Gorsuch said that was “no more than the straightforward application of legal terms with plain and settled meanings.” Although he had said at the oral argument, last October, that it was “really close, really close,” and wondered about a “massive social upheaval,” his opinion ultimately concluded that “no ambiguity exists.”, Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh strongly disagreed, saying that Gorsuch’s interpretation mangled the text, and textualism along with it.
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