No doubt many of you have seen the widespread praise over the Supreme Court’s decision in Bostock v. Clayton County, Georgia, prohibiting discrimination against gays, lesbians, and transgendered people. Repeatedly included in such praise, however, is the expressed concern that Justice Neil Gorsuch’s textualist approach in authoring the decision “is going to work against a robust protection of rights more than it works to promote them.”
In many ways this concern is completely justifiable. I would argue no Justice on the Court is as wildly inconsistent or willing to completely abandon prior principles so as to reach a politically desired result as Gorsuch. Here is a man who, before he joined the Supreme Court, had basically made a judicial career out of criticizing the power of unelected bureaucrats. Yet, since joining the Supreme Court, Gorsuch has time and again opposed the application of judicial review over the unelected bureaucrat. Even in instances when said bureaucrat is caught lying about why a particular regulation was being implemented and for explicitly racist reasons.
Nevertheless, I find myself daring to believe that Gorsuch’s textualist approach in Bostock is not only not a trap but a clear signal that a majority of this Court is more interested in a robust expansion of rights.
Why do I believe this? Well, for one thing, although Gorsuch might be wildly inconsistent, the rest of the Justices who joined the opinion are not. And if you were to apply the textualist approach in the Bostock opinion faithfully (which I expect the five Justices who are not Gorsuch to do so in the future), then the expansion of rights, particularly the Bill of Rights, becomes inevitable.
Again, you might be asking how I can say this. It comes down to the fact that the things most people are worried about when it comes to textualism/originalism constriction of rights are expressly what the Bostock opinion rejects. For example, one of the most common critiques of textualism/originalism is that it subverts modern — dare I say more-expanded — concepts of morality for the morality of those in the past who supported slavery and bigotry.
Yet, throughout the Court’s Bostock opinion is the rejection of the argument that just because many at the time did not anticipate Title VII of the Civil Rights Act of 1964 to be applied to gays, lesbians, and transgendered people that is not applicable to these classes of individuals. As someone who follows the originalism debate closely, I cannot stress enough how satisfying and explosive this rejection is and the possibly enormous implications it has for the future.
Think about it, the late Justice Antonin Scalia argued that the “cruel and unusual” clause within the Eight Amendment does not apply to anything (including capital punishment), that was practiced at the time the amendment was adopted. As others before me have pointed out, however, Scalia’s argument “assumes that what those who proposed and ratified the Eighth Amendment intended was something such as: ‘The government cannot utilize punishments considered cruel and unusual at the time of the enactment of this amendment.’ Where is the justification for this interpretation? There isn’t any. There is certainly no justification in the text itself because the Founders did not include the language I italicized — although it would have been easy to do so. The Constitution does not have a word limit.”
The framework in Bostock, in my opinion soundly rejects Scalia’s flawed argument that every provision — even open-ended provisions such “cruel and unusual,” “due process,” or “unreasonable” search and seizures — must be interpreted only to the extent that those who passed them understood them to mean. By rejecting this argument, many of the open-ended provisions in our Constitution can rightfully begin to be applied with broader, modern interpretations. Wherever this has been done, such as with the free speech clause, the right has only been expanded ever increasingly.
Of course, time could very well prove me wrong about all this and Joe Patrice right. But given the amount of broad, open-ended rights that are contained within our Constitution and given that six members of the court agreed in a case with monumental political proportions, that laws are not confined to the eras in which they were passed. I find myself daring to believe that for perhaps the first time in my adult life, a majority of the Supreme Court has committed itself to an expansion of civil liberties instead of restricting them. Except the Establishment Clause of course.
Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.