Randy Barnett and I recently published a commentary of Bostock v. Clayton County. We criticized Justice Gorsuch from building a textualist framework on top of precedents that did not take text seriously. In particular, Justice Gorsuch relied indirectly on Justice Brennan's plurality decision in Price Waterhouse v. Hopkins. We wrote:
Justice Gorsuch committed errors of both source and time. He determined the ordinary public meaning of a 1964 statute by relying on case law from decades later.
Consider another significant Title VII case, also authored by Justice Brennan: United Steel Workers v. Weber (1979). This case held that race-conscious affirmative action plans were consistent with Title VII. The majority expressly rejected the "literal" meaning of the phrase "discriminate against . . . because of . . . race." Justice Brennan explained:
In this context, respondent's reliance upon a literal construction of §§ 703(a) and (d) and upon McDonald is misplaced. See McDonald v. Santa Fe Trail Transp. Co., supra at 427 U. S. 281 n. 8. It is a "familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers." Holy Trinity Church v. United States, 143 U. S. 457, 143 U. S. 459 (1892). The prohibition against racial discrimination in §§ 703(a) and(d) of Title VII must therefore be read against the background of the legislative history of Title VII and the historical context from which the Act arose.
Chief Justice Burger responded in his dissent:
Oddly, the Court seizes upon the very clarity of the statute almost as a justification for evading the unavoidable impact of its language. The Court blandly tells us that Congress could not really have meant what it said, for a "literal construction" would defeat the "purpose" of the statute—at least the congressional "purpose" as five Justices divine it today. But how are judges supposed to ascertain the purpose of a statute except through the words Congress used and the legislative history of the statute's evolution?
Justice O'Connor offered this concise summary of Weber in her concurrence in Johnson v. Transportation Authority:
In Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), this Court held that § 703(d) of Title VII does not prohibit voluntary affirmative action efforts if the employer sought to remedy a "manifest . . . imbalanc[e] in traditionally segregated job categories." Id., at 197, 99 S.Ct., at 2724. As Justice SCALIA illuminates with excruciating clarity, § 703 has been interpreted by Weber and succeeding cases to permit what its language read literally would prohibit. Post, at 669-671; see also ante, at 642-643 (STEVENS, J., concurring). Section 703(d) prohibits employment discrimination "against any individual because of his race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(d) (emphasis added). The Weber Court, however, concluded that voluntary affirmative action was permissible in some circumstances because a prohibition of every type of affirmative action would " 'bring about an end completely at variance with the purpose of the statute.' "This purpose, according to the Court, was to open employment opportunities for blacks in occupations that had been traditionally closed to them.
Brennans' anti-literalism is the exact opposite of the approach Justice Gorsuch used. Yet, Gorsuch's textualism was premised on the anti-textualist precedents from Justice Breyer. Thus, we deem Gorsuch's approach "half-way textualism."
Jurists on all courts need to grapple with the relationship between stare decisis and originalism/textualism. At a minimum, judges should acknowledge how much of their decisions are mandated by precedents, and how much of their decisions extend those precedents. I wrote about this important dynamic here.
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