On the latest episode of the WI Law in Action podcast from the UW Law Library, host Kris Turner interviews UW Law School’s William Voss-Bascom Professor Anuj Desai. Prof. Desai teaches courses in cyberlaw, the First Amendment, intellectual freedom, statutory interpretation, legislation and regulation, and copyright at both the Law School and the iSchool (Information School).
Our conversation focuses on Prof. Desai’s article “Text is Not Enough,” recently published in the Colorado Law Review. The article examines how judges employ textualism and other forms of statutory interpretation through the lens of the 2020 Title VII case, Bostock v. Clayton County. Below are a few excerpts from our discussion.
Desai on textualism versus intentionalism and purposivism in statutory interpretation:
Textualism is an approach to interpreting statutes that focuses on what one could call the semantic meaning of the text, the linguistics that tells the interpreter to really think primarily and indeed, if possible, I think some texts would want entirely, about what we refer to as the plain meaning of the words of the statute. And then to apply that meaning to the facts scenario of any particular case…
Intentionalism is generally attentive to the legislature’s really specific intent with respect to particular language whereas purposivism focuses on the legislature’s broader purposes…. Purposivism was premised on this underlying notion that courts should interpret statutes so as to “carry out the purpose as best they can”… And by the 1980s, many people believed, and this is most prominently, the late Justice Scalia, the purposivism and intentionalism were basically proxies for judges doing whatever the heck they wanted. And I’m exaggerating slightly, but you get the idea that once you start talking about purposes of statutes at a certain level of generality, you have a lot of leeway.
Desai on the use of textualism in the Bostock majority opinion:
So Bostock was a case about Title VII of the federal Civil Rights Act of 1964, as you mentioned earlier, which is conventionally known as the statute that prohibits discrimination in employment…. And the key question was whether firing someone because he was gay… constituted a discharge “because of his sex.” … The plaintiffs said that the plain meaning of the statute required ruling in their favor… If you don’t know anything about this game, this should seem a little odd because the language is because of such individual’s sex, not sexual orientation…
But this textual argument, and as I said is incredibly clever and here’s how it goes. So first, remember the languages “because of such individual sex.” And the court starts by saying the term “because of” embodies what we refer to as “but for” causation… The basic idea is, but for the person’s sex, the person would not have been fired. So another way to say this in the context of Bostock himself is just to say, but for the fact that Bostock was male, he would not have been fired…
If Bostock had been female, and here’s the important part, and everything else about him had been the same, he would not have been fired. Now it’s that everything else about him had been the same that comes to the fore. So, the majority says if Bostock had been female and had as he is been attracted to males, then he would not have been fired… And therefore he was fired “because of his sex.” So that’s the argument and that’s the winning argument. So it is now the case that under federal civil rights law, the prohibition on not discharging and not hiring and treating differently in employment terms and conditions, et cetera, et cetera because of sex applies to sex orientation….
Gorsuch’s majority opinion, as I said before, is really quite straightforward. It’s almost as one scholar has put an algorithmic. It’s almost really just a syllogism. It’s if Bostock had been a woman, he would have not been fired, therefore it’s because of sex, therefore he wins. End of story.
Desai on the use of textualism in the Bostock dissent:
Justice Alito in dissent says, wait a minute, you haven’t kept everything the same when you changed Bostock to a woman. It’s true you kept the sex of his partner or the people he’s attracted to or his husband or whatever it is the same, that’s true, but notice what you’ve also done. You’ve changed not just his sex, you’ve also changed his sexual orientation. And so you haven’t kept everything the same. So, the right comparator for Bostock is not a female who is attracted to men, but instead a female who is attracted to women…
So he is correct that Justice Gorsuch changed more than one thing when changing Bostock’s sex. Justice Gorsuch in majority did change both Bostock’s sex and Bostock’s sexual orientation. So yes, it’s true he changed more than one thing, but at the same time, Justice Alito when changing Bostock from a gay man to a gay woman is changing both Bostock’s sex and the sex of Bostock’s partner or people to whom he’s attracted.
Desai on comparing the two textualist arguments:
Justice Gorsuch changes the sex and the sexual orientation and Justice Alito changes the sex and the partner’s sex. Both of them change something. Now, but how do I choose between those comparators? Notice there’s nothing in the words of the statute that can tell you which of those comparators is correct. You might have an intuition about which comparator is correct. And there might be other reasons why you think one comparator is correct rather another, but it’s not because of a definition of the words “because of,” it’s not because of the definition of the word “sex,” it’s not because of the word “discharge,” it’s not because of the word… It’s none of the words. It’s not like Justice Alito is pointing to a different dictionary and saying, “This is the right definition.” And Justice Gorsuch say, “No, this is the right definition.” There’s no definitional difference in the words of the statute, right?
Desai on why “text is not enough” in Bostock:
So, the core of my argument is that you can’t choose between those two comparator arguments on the basis of the words of the statute. And therefore at core, what is differentiating the majority from the dissent is not a textual distinction. And I would say at least, unfortunately, most of what the opinions discuss doesn’t tell you that. And so it’s another example of the courts, either partly intentionally, but maybe partly unintentionally or subconsciously not laying out completely what is making them decide the way they’re decided.
So, as I referred to earlier, I do think there are other possible arguments. And one that I talked about the sex stereotyping argument is an argument that you could, if you were inclined to agree with the plaintiff, that I think is a really strong argument, but again, it requires that you accept a bunch of past precedent about Title VII. And so part of the core of my argument is that implicitly even Justice Gorsuch, who explicitly says, “I’m not relying on precedent here, I’m just relying on the plain meaning of the words,” implicitly he is relying on that precedent.
And in particular what he’s relying on are the social changes that have taken place over the last 56 years that shaped all of that precedent through the history of Title VII. And so you can’t, in 2022, you can’t treat the statute anymore the way you could have in January 1st, 1965 or something like that soon after it had been passed. And the reason you can’t is not articulated by the majority, but has to be implicit in the majority’s conclusion because the majority’s conclusion can’t rely solely on the comparator.
Desai on what this means for statutory interpretation and textualism:
[Scholars have] done empirical work about Supreme Court cases showing that even the justices who say they’re textualist rely just as often as the other justices on other types of arguments… One of the reasons I wrote my article was really to say one of the nice things about this Bostock case is that it’s almost like this paradigmatic example to help us better see what the empiricists have really shown us for years that you need in these hard cases…
Bostock is representative… of this very small number of situations in which the text is not enough. I mean, that we need other modes of argumentation. And that inevitably, even for the textualist judges, it is true that you need to give them a textualist argument, but the textualist argument will not win your case for you. That’s the key thing… Another way to say it is: text is necessary, but not sufficient. You definitely need an argument that comes from text, but you can’t win one of these cases generally speaking by just saying text, text, text all the time.