Congress did something it was unaware of


“[T]he limits of the drafters’ imagination supply no reason to ignore the law’s demands.”

— Justice Neil Gorsuch on Monday

Monday illustrated the limited usefulness of the political labels that often are carelessly bandied: The four Supreme Court justices called liberals (Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor) joined two called conservatives (John Roberts Jr. and Neil Gorsuch) in this ruling: In the 1964 Civil Rights Act, Congress did something it was unaware of doing.

The majority opinion and two dissents featured conflicting conceptions of “textualism” in construing statutes. The decision affirmed this: A majoritarian institution, Congress, is not, by its action or inaction, decisive in determining the meaning of legislation, or the scope of rights.

In 1964, in the first of its two noblest acts (the other: the 1965 Voting Rights Act), Congress banned discrimination “because of” race, color, religion, national origin or sex. For 45 years Congress has intermittently rejected attempts to amend the 1964 act to ban discrimination because of “sexual orientation” and what is now termed “gender identity.” Supporters of these attempts implicitly accepted that such discrimination was not encompassed by the ban on discrimination because of sex.

On Monday, however, Gorsuch, writing for the majority, said that neither Congress’ refusal for 45 years nor its state of mind 56 years ago are dispositive. He said that “only the written word is the law,” and the meaning of a law’s words should be determined without reference to the authors’ intentions regarding possible future applications. Without, that is, considering whether those who wrote it anticipated future results of applying the law’s principles to practices they did not consider:

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions” – e.g., a man dating a man, a woman marrying a woman – “it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision.”

Regarding Monday’s three cases (concerning gay and transgender employees), Gorsuch conceded that “homosexuality and transgender status are distinct concepts from sex,” and that since 1964 applications of the ban on discrimination because of sex have “likely” been beyond what many in Congress expected. Gorsuch’s point was: The text, meaning the word “sex,” not the 1964 Congress’s imagining of future applications of the ban down the decades, must be controlling in 2020.

Joined in dissent by Clarence Thomas, Samuel Alito Jr. dismissed Gorsuch’s opinion as spurious textualism: “[W]hat it actually represents is … the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.” The question about banning sexual discrimination is only “whether Congress did that in 1964” (Alito’s italics).

Alito’s alternate textualism holds that a statute’s words mean what they meant to those who used them when writing the statute. Gorsuch’s textualism says that Monday’s majority was properly controlled by the meaning, then as now, of Congress’s 1964 words. “The ordinary public meaning” (Gorsuch’s phrasing) of those words, were, he grants, intended to ban only discrimination against women, not sexual orientation. But the words’ meanings have not been changed by society’s subsequent attitudinal changes. Rather, the unchanged meaning of the 1964 language entails the conclusion that the court’s majority reached Monday about the nature of actions (e.g., employers firing gay, lesbian or transgender employees) that, although not on Congress’ mind in 1964, are today necessarily recognized as actions taken “because of sex.”

Brett Kavanaugh’s separate dissent emphasized the separation of powers: “[T]his case boils down to one fundamental question: Who decides?” He said the majority has “expanded” the 1964 act, effectively amending it, which is the dual responsibility of Congress presenting statutory changes to the president.

Again, the majority’s response is: Congress did decide, without knowing it, in 1964. What Kavanaugh calls expansion of the act is merely following the logic of the act’s language, even though this has led to places those who wrote the language did not anticipate. The 1964 language has an unchanged internal logic, regardless of the words’ contemporary salience that was unforeseen by the words’ authors.

So, Monday’s decision was logical, not paradoxical. Congress’ 1964 language implied — intended, really — outcomes Congress did not contemplate. Now, about labels:

Is Gorsuch’s reasoning unconservative because it affirms broader protection to rights than the 1964 congressional majorities understood to be latent in the logic of their language? Or are Gorsuch’s conservative critics reasoning backward from a policy outcome of which they disapprove, thereby embracing the result-oriented jurisprudence they usually associate with judicial liberalism?


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