In June of 2020, Justice Gorsuch delivered the majority opinion for the Supreme Court in the landmark case Bostock v. Clayton County, holding that discrimination against employees for their sexual orientation or gender identity is effectively discrimination because of sex, and is thus barred by Title VII. In dissent, Justice Alito wrote that the “Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated—the theory that courts should ‘update’ old statutes[.]” In short, Justice Alito thought Justice Gorsuch betrayed textualism by reading a new meaning into an old statute. Justice Gorsuch did not believe he was buccaneering but simply applying the text. What could cause two justices who are often interpretive allies to split? Bostock illuminates a key distinction between textualism and originalism, two methods of interpretation of a text that are frequently used together and usually lead to the same outcome.
Originalism, in its most prominent version advanced by Justice Scalia, is a method of interpreting the Constitution based on its original public meaning while textualism is a method of interpreting statutes based on their text. Originalism purports that the Constitution should be interpreted based not only on its text and structure but also on how a well-informed member of the public would have reasonably understood the text at the time of ratification. Textualism primarily focuses on the words, grammar, and structure of a statute to discern meaning. Thus, while both eschew purpose or intent as tools of interpretation, originalism is best used as a method of constitutional interpretation while textualism is best deployed as a method of statutory interpretation.
Why the distinction? I believe more than semantics distinguishes the two, for there is a difference in kind between a constitution and a statute. A constitution is an overarching document that outlines the broad operation of the federal government and its relation to state governments and individual rights. The U.S. Constitution, which contains a mere 7,000 words, sets out a principled framework, not a detailed policy prescription. As Chief Justice Marshall famously said in McCulloch v. Maryland, “it is a constitution we are expounding.” A constitution “requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves.” Thus, a constitution warrants more capacious considerations of the original public meaning to make sense of these general provisions and fill the gaps for specific applications.
Statutes, on the other hand, are comprehensive and detailed. They are granular prescriptions that specify what the law requires. A textualist should find everything needed for interpretation in the text passed by Congress. Chief Justice Marshall distinguished between a constitution and a legal code: a “constitution to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code.” The prolixity of a legal code continues to be an apt description as statutes are even lengthier and more specific in modern times. For example, Title VII alone is almost twice the length of the Constitution. Therefore, because of this difference in kind between constitutions and statutes, jurists are justified to and should apply originalism to the Constitution and textualism to statutes.
So how does this distinction apply in Bostock? Bostock is a high-water mark for originalism and textualism on the Supreme Court and shows how each philosophy has taken hold. All three opinions—the majority and two dissents—facially invoke textualism, but each applies it differently and with different levels of faithfulness to the method. This has sparked much debate and criticism within originalist circles, and also reveals a potential conflation of originalism and textualism.
Bostock shows how originalism and textualism, though often used interchangeably, can lead to different outcomes. In interpreting Title VII, Gorsuch used a pure textualist approach. His second paragraph in Bostock explains his rationale for employing textualism despite an outcome that may be contrary to the intention of Title VII’s ratifiers: “Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. . . . But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.” Gorsuch explains that “[w]hen 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.” These quotations alone show that Gorsuch is not relying on the original intended application as understood by the Congress who voted on and passed the Civil Rights Act; he primarily relies on the express language of the statute.
On the other hand, Justice Alito, in dissent, invokes textualism but focuses on the original public meaning of the text—a tool more commonly wielded with originalism. He extolls that “our duty is to interpret statutory terms to ‘mean what they conveyed to reasonable people at the time they were written.’” This raises the question: is the meaning of Title VII as understood by the American public in 1964 an extratextual consideration or is it inextricable from the meaning of the text? The problem with using original public meaning understanding to control meaning in a statute is that it can quickly morph into relying on the original intended application, as it does here in Justice Alito’s dissent. The original intended application, however, can differ from the meaning of the text, and its use hints at purposivism—a method of statutory interpretation that relies largely on Congress’s intent at the time of a statute’s enactment and is widely rejected by both originalists and textualists. Even some versions of originalism would reject using the original intended application, which bolsters the reasoning for not deploying it in statutory interpretation. Admittedly, it could be argued that some statutes are written using such broad language that they should be interpreted based on their original public meaning. Regardless, Alito did not advance such an argument in this case.
Then there is Justice Kavanaugh’s dissent, which again invokes textualism but interprets the statute by relying on the original public meaning of the whole phrase “because of . . . sex.” Kavanaugh stresses that “[b]oth common parlance and common legal usage treat sex discrimination and sexual orientation discrimination as two distinct categories of discrimination—back in 1964 and still today.” Kavanaugh avoids calling this original public meaning, and instead calls this ordinary meaning while accusing Gorsuch of using literal meaning. But interpreting Title VII based on how people in 1964 would read it is in actuality reliance on the original public meaning of Title VII, and thus originalism.
Because Gorsuch reasons that “[i]n the language of law, . . . Title VII’s ‘because of’ test incorporates the . . . standard of but-for causation,” prominent originalists accused him of engaging in “halfway textualism.” Under their theory of textualism, Gorsuch erred by abandoning the ordinary meaning “in favor of a specialized, technical legal meaning — what lawyers refer to as a term of art — not found in Webster’s Third.” But given that statutes are complex legal documents, full of terms of art and specialized phrases that trigger certain legal analyses, is it not appropriate for Gorsuch to interpret a statute based on its “technical legal meaning” instead of how an ordinary American would understand it? For example, in criminal statutes, words like recklessness or negligence carry with them deep-rooted connections to certain doctrines. Should the common law and caselaw definitions of these terms be disregarded in favor of what the public thinks they mean at the time of passage? Furthermore, statutes often contain a definitions section. These definitions undoubtedly control meaning and move public understanding to the backseat.
The dissents assume original public meaning should be dispositive without considering how that might diverge from textualism or overlap with purposivism. If textualists relied on the original public meaning of the statute, either as understood by the Congress who enacted the bill or the public at the time of passage, the analysis could veer into relying too heavily on Congress’s intent or at least relying on how Congress anticipated the statute would be applied. Expected application is simply purposivism by another name, and thus antithetical to both textualism and originalism. This overlap is clear in Bostock. Assuming it was not Congress’s intent to protect LGBTQ individuals under Title VII, then Alito and a purposivist would arrive at the same result in this case.
Bostock is a prime case for distinguishing between originalism and textualism and how each should be used. Hopefully, Bostock will serve as a teaching moment for originalists, textualists, and purposivists alike. Pirate ships aside, the better our understanding of the important distinctions between these methods, the better lawyers and judges will be able to navigate the waters of interpretation.
Austin Piatt is a student at Northwestern University Pritzker School of Law and an Articles Editor for Volume 116 of the Northwestern University Law Review.