Friday, July 10, 2020

Damn the Consequences, Gorsuch Says

“So let the chips fall where they may
And let these matters be settled this way
We'll let our judgement get carried away”

Yesterday, the Supreme Court ruled, as described by Chief Justice Roberts in his dissent, that “a huge swathe of Oklahoma is actually a Creek Indian reservation, on which the State may not prosecute serious crimes committed by Indians.” Three and a half weeks earlier, the Court ruled that in forbidding workplace discrimination on the basis of sex, Title VII of the Civil Rights Act of 1964 forbade discrimination on the basis of sexual orientation and transgender status, a holding that Justice Alito’s dissent criticized for its “far-reaching consequences.” What do they have in common besides their potentially sweeping implications? Both are basically statutory (and, for the former, treaty) interpretation cases, both purport to adhere to the text of the relevant laws and disregard the consequences of the interpretations each adopts, and the majority opinion in each case was written by Trump appointee Justice Neal Gorsuch.
Yesterday’s decision in McGirt v. Oklahoma was joined by the four more liberal Justices (Ginsburg, Breyer, Kagan, and Sotomayor). It holds that an 1833 treaty between the United States and the Creek Nation established a reservation in what is now Oklahoma (and which encompasses most of Tulsa), and that the federal Major Crimes Act accordingly precludes state court prosecutions of Indians for major crimes committed in that portion of Northeast Oklahoma. Instead, any such criminal prosecutions would have to be brought by the federal government or the Creek Nation under their respective laws. In reaching its conclusion that subsequent federal laws did not disestablish the Creek Reservation, Gorsuch insists that “[w]hen interpreting Congress’s work in this arena, no less than any other, our charge is usually to ascertain and follow the original meaning of the law before us.” A court may not “favor contemporaneous or later practices instead of the laws Congress passed.” Explicitly emphasizing the point, the Court “restate[d] the point. There is no need to consult extratextual sources when the meaning of a statute’s terms is clear. Nor may extratextual sources overcome those terms. The only role such materials can properly play is to help ‘clear up . . . not create’ ambiguity about a statute’s original meaning.”

And the sweeping consequences of the Court’s decision were not a reason to change the meaning of the terms of the law. As the majority opinion summarized the argument: “If we dared to recognize that the Creek Reservation was never disestablished, Oklahoma and dissent warn, our holding might be used by other tribes to vindicate similar treaty promises. Ultimately, Oklahoma fears that perhaps as much as half its land and roughly 1.8 million of its residents could wind up within Indian country.” Yet the Court flatly rejected the argument, dismissing it because “dire warnings are just that, and not a license for us to disregard the law.”

This fealty to a textualism often indifferent to consequences where statutory text is viewed as clear   reminiscent of Justice Oliver Wendell Holmess sense of duty as a judge to adhere even to “foolish laws for “if my fellow citizens want to go to Hell I will help them. Its my job  also characterized Justice Gorsuch’s earlier opinion in the title VII case Bostock v. Clayton County, Georgia (discussed here). There, joined not only by the Court’s more liberal Justices but also by Chief Justice Roberts, Gorsuch insisted (with good reason) that discrimination on the basis of sexual orientation or transgender status is sex discrimination, and that Title VII therefor forbids it. His majority opinion was undeterred by the dissenters’ invocation of supposedly broad consequences of adopting that interpretation of the statute. Whether the objection was couched in terms of legislative intent or what the Court saw as the closely related notion of expected applications of a statute, Gorsuch rejected the idea that consequences of his statutory interpretation count as a reason to “decline to enforce the plain terms of the law.” This was true even though the interpretation the Court was embracing was monumental in its potential significance.

The Court in Bostock relatedly rejected the idea that “the no-elephants-in-mouseholes canon” of statutory interpretation – the idea that Congress does not hide major regulatory changes in minor statutory provision – supported the effort to limit Title VII’s notion of prohibited sex discrimination.
We can’t deny that today’s holding—that employers are prohibited from firing employees on the basis of homosexuality or transgender status—is an elephant. But where’s the mousehole? Title VII’s prohibition of sex discrimination in employment is a major piece of federal civil rights legislation. It is written in starkly broad terms. It has repeatedly produced unexpected applications, at least in the view of those on the receiving end of them. Congress’s key drafting choices—to focus on discrimination against individuals and not merely between groups and to hold employers liable whenever sex is a but-for cause of the plaintiff ’s injuries—virtually guaranteed that unexpected applications would emerge over time. This elephant has never hidden in a mousehole; it has been standing before us all along.
The fact that “undesirable … consequences” might follow from the Court’s interpretation of Title VII was a mere “naked policy appeal[,]” and to embrace that would abandon “any pretense of statu­tory interpretation.”

Justice Gorsuch’s ideas of what statutory text does and does not plainly say is contestable – as the dissents in these cases believed – but his textualist approach to statutory interpretation may lead him places that are more ideologically diverse than we might see were he not to profess that interpretive commitment.

Monday, June 15, 2020

Title VII Means What It Says, Supreme Court Rules, Cheering LGBT Workers

“But you got dreams
He’ll never take away”

In Bostock v. Clayton County, the U.S. Supreme Court ruled today that firing employees because they are “homosexual or transgender” violates the ban on sex discrimination in Title VII of the Civil Rights Act of 1964, the major federal employment discrimination statute. This is a position LGBT people have taken since shortly after the statute was enacted; it is a position long advocated by numerous legal scholars, including me. It is the interpretation of the statute that was prevailing among more recent lower court decisions, in contrast to older judicial opinions. By embracing what Justice Gorsuch, writing for the six-member majority including the more liberal Justices (Ginsburg, Breyer, Kagan, and Sotomayor) and Chief Justice Roberts, considered the “ordinary public meaning” of the words of the statute when Congress passed it in 1964, the Court has assured that countless people in the U.S. have legal protection against anti-LGBT workplace discrimination, even in states that have not themselves enacted express bans on sexual orientation or gender identity discrimination.

The Court’s decision in Bostock also has potentially much broader application. Many other statutes prohibit sex discrimination. The Bostock decision is about one specific statute, Title VII, so it does not directly, immediately require that other statutes banning sex discrimination also reach sexual orientation and gender identity discrimination. But the reasoning in the majority opinion in Bostock could well lead the Supreme Court to that conclusion in further cases. If so, then it might well rule that the Trump administration’s attempt to roll back an Obama era regulation under the Affordable Care Act (ACA), which until Friday interpreted the ACA’s ban on sex discrimination to reach sexual orientation and gender identity discrimination, is contrary to the statute and legally void.

In addition, the constitutional guarantee of equal protection of the laws has been implemented by judicial doctrine giving government more or less deference when courts review different forms of government discrimination. Age discrimination is upheld unless the reviewing court concludes the plaintiff showed the government lacked a rational basis for its action; rational basis review is a very easy standard for the government to meet. But sex discrimination gets less deference, with courts supposed to uphold it only if the government discrimination proves that its action survives a form of heightened review often called intermediate scrutiny. It’s not enough there to have a rational basis; the discrimination must serve not just a legitimate purpose but one the courts will judge “important,” and the sex discrimination cannot just be loosely connected to the purpose in any “rational” way; rather, the discrimination must be “substantially related” to the discrimination. This is a much more demanding standard, one difficult for government actors to meet. Although Bostock was grounded in the meaning of a statutory text that proscribes “discrimination” “because of” “sex,” it would not be a stretch to see the Supreme Court rule that the Bostock reasoning shows that the constitutional concept of sex discrimination embraces sexual orientation and gender identity discrimination. This would then extend protection against governmental discrimination under the Constitution even where statutes don’t reach. That could have enormous benefit for LGBT people in a variety of contexts, including the federal government’s transgender military service ban.