Judges relying on Bostock v. Clayton County to interpret statutes

The Supreme Court’s recent decision in Bostock v. Clayton County, interpreting the language “because of . . . sex” in the Civil Rights Act of 1964, has already yielded extensive debate and discussion, but particularly within politically conservative legal communities, as Justice Neil Gorsuch drafted a majority opinion over the dissenting opinions of Justice Samuel Alito (joined by Justice Clarence Thomas) and Justice Brett Kavanaugh.

In part, there is a debate about what “textualism” means and what tools of statutory interpretation are or are not appropriate. In another part, there is a debate over the result, concerning a federal anti-discrimination statute and its application to cases involving sexual orientation and gender identity.

The en banc Fifth Circuit recently issued a brief opinion in Thomas v. Reeves, concluding that a dispute over legislative district maps in 2019 was moot. But the case spawned 50 pages of essentially dicta concerning the proper scope and application of 28 U.S.C. § 2284(a), or the scope of authority for three-judge courts to hear election law cases.

Of note—to me, at least—was some language in Judge Don Willett’s opinion, joined by Judges Jerry Smith, Jennifer Elrod, Kyle Duncan, and Kurt Engelhardt, on statutory interpretation. In doing so, Judge Willett’s opinion pulls quotations from Justice Gorsuch’s opinion in Bostock:

Just this week, the Supreme Court issued a landmark decision, holding that the 56-year-old Civil Rights Act forbids workplace discrimination on the basis of sexual orientation or gender identity. Specifically, the Court declared that “because of sex” encompasses “because of sexual orientation or gender identity.” The latter is not distinct from sex discrimination, but a form of it. Hearteningly, all nine Justices applied textual analysis to Title VII, as we do today with § 2284(a), but, just like us, they reached polar-opposite conclusions. In dissent, Justices Alito and Thomas charged the majority with “disregarding over 50 years of uniform judicial interpretation” and protested that “there is not a shred of evidence that any Member of Congress interpreted the statutory text that way when Title VII was enacted.” The Bostock majority did not—indeed, could not—dispute those facts. It just deemed them immaterial, insisting that what matters (all that matters) is the literal text within a statute’s four corners—what it called “Title VII’s plain terms.”

A time traveler from 1964 would doubtless express astonishment that Congress had, unwittingly and unbeknownst to everyone, equated sex discrimination with sexual orientation discrimination (much less with gender identity discrimination)—and that it had done so by adopting a one-word amendment (inserting “sex”) from a representative who was cynically trying to scuttle the entire Civil Rights Act. But the Bostock majority focused on the “broad language” that Congress adopted, not on the ripple effects, however unforeseen, that flowed from it five decades later. The Court thus gave no interpretive weight to the fact that not a single drafter of Title VII in 1964 intended, noticed, or anticipated that “because of ... sex” would cover discrimination against homosexual or transgender persons. The Court remarked that resorting to “expected applications” or only those “foreseen at the time of enactment ... seeks to displace plain meaning of the law in favor of something lying beyond it.” Text is paramount—“only the words on the page constitute the law”—and if those words lead to “unexpected consequences,” so be it.

Settled practices matter not, nor does the “unanimous consensus” among the courts of appeals stretching across a half-century. As the Court put it: “Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.” In the Bostock majority’s view, language codified by lawmakers is like language coded by programmers. A computer programmer may write faulty code, but the code will perform precisely as written, regardless of what the programmer anticipated. Courts, no less than computers, are bound by what was typed, and also by what was mistyped. What this means for Title VII: “When a new application emerges that is both unexpected and important,” said the Court, it is no answer to “have us merely point out the question, refer the subject back to Congress, and decline to enforce the plain terms of the law in the meantime.” We are bound by Bostock, whose ascetic interpretive rules for Civil Rights Act cases apply with equal force to Voting Rights Act cases.

Judge Costa’s opinion asserts virtually the same arguments as the Bostock dissenters, appealing to “venerable” understandings, “widely accepted meaning,” and “uniform caselaw.” He labels the State’s § 2284(a) argument “unprecedented,” invoking Justice Scalia’s colorful elephants-hiding-in-mouseholes aphorism. . . .

(Emphasis added.) It’s interesting—to me, at least—that Judge Willett, who was one of the original eleven names on then-candidate Donald Trump’s “list” of Supreme Court nominees—has quickly and readily embraced Justice Gorsuch’s approach in Bostock, and critiqued Judge Gregg Costa for adopting the approach (as he saw it) of Justices Thomas, Alito, and Kavanaugh.

It’s also notable, I think, to see who signed onto this interpretation—Trump-nominated Judges Duncan and Engelhardt signed onto it, but Judges James Ho and Andy Oldham (who wrote separately on a different issue) did not. Judge Edith Jones also did not join Judge Willett’s opinion. (Others joined Judge Gregg’s opinion, didn’t participate, or didn’t weigh in.)

Was Justice Gorsuch’s approach in Bostock right? We already have several members of the Fifth Circuit who think so. We’ll see whether Bostock’s approach holds sway over other judges in the years ahead.