The Supreme Court’s decision last week that discrimination on the basis of gender identity and sexual orientation necessarily involves discrimination “because of sex” shocked the conservative legal world.

The heart of conservative objection to the Court’s ruling in Bostock v. Clayton County is that the decision undermines the American enterprise of democracy.  Even if one finds the Court’s result compelling, the decision short-circuits the legislative process and can only be described as judicial lawmaking.  And when the Supreme Court acts as an unelected super-legislature, We the People lose: We no longer have an ability to influence the laws by which we are governed. 

Worse, although clothed in textualist garb, the majority opinion adopts an interpretation of Title VII that no one would have anticipated when the statute was passed in 1964.  The Court’s discovery of a latent, hidden meaning destroys legislative accountability and also subverts the ability of everyday Americans to know and understand the laws under which we live.

Justice Gorsuch began the Court’s opinion by noting that the proper way to interpret a statute is according to its ordinary public meaning at the time of its enactment.  As Justice Alito reminds us in his dissent, the late-Justice Scalia wrote that statutory terms “mean what they conveyed to reasonable people at the time they were written.”  This makes sense as the meaning of language in general, and legislation in particular, is based upon community understanding.  That is, statutes convey meaning because a community applies “shared background conventions” to understand “how particular words are used in particular contexts.”  Thus, as Justice Alito puts it, the appropriate question when analyzing a statute is simple: “How would the terms of a statute have been understood by ordinary people at the time of enactment?”

Justice Gorsuch is right about original public meaning.  And under his own test, the Court’s opinion is patently erroneous.  To be correct, the Court would have to show that ordinary Americans in 1964 would have believed that Title VII’s prohibition on discrimination because of sex included discrimination because of sexual orientation and gender identity.  But no one claims that is true.  The majority does not contend that either Congress or an ordinary American in 1964 would have interpreted the statute to include sexual orientation and transgender.  Indeed, the latter term was not even coined until the 1970s.

Instead, Justice Gorsuch elevates what he views as the literal meaning of Title VII over the ordinary public meaning of the statute.  He claims that the meaning of Title VII adopted by the majority was hidden in the statute all along – one just had to be intellectual enough to see it. 

The Court, moreover, found that the secret meaning tucked away in Title VII and lying latent since 1964 was somehow unambiguous.  This, despite the fact that until these cases, some 30 judges appointed by both Democrat and Republican presidents had unanimously concluded that Title VII did not include sexual orientation and transgender discrimination. 

The Court’s surprise plain meaning approach is reminiscent of the way Leo Strauss interpreted old texts to discover hidden, esoteric meanings.  These secret meanings, according to Strauss, can only be ferreted out by the serious intellectual.  Whatever the merits of Straussian interpretation when dealing with texts written by subversive authors under oppressive regimes, Straussian interpretation has no place in statutory interpretation.   

Further, the champion of textualism, Justice Scalia, made no bones about the fact that ordinary public meaning trumps literalism.  As Justice Kavanaugh reminds us, he once wrote, “the good textualist is not a literalist.”  Rather, adhering to the “fair meaning of the text” does not “limit one to the hyperliteral meaning of each word,” for to employ “a sterile literalism … loses sight of the forest for the trees.”  The statute or phrase as a whole may “alter the literal meaning of individual words,” he continued.  Thus, the Supreme Court has held that, while tomatoes are literally “the fruit of a vine[,] … in the common language of the people,” tomatoes are vegetables.

Justice Kavanaugh points out the absurdity of relying on literal meaning when community context gives words a different ordinary public meaning.  For example, he explains that:

·       An “American flag” could literally encompass a flag made in America, but in common parlance it denotes the Stars and Stripes.

·       A “three-pointer” could literally include a field goal in football, but in common parlance, it is a shot from behind the arc in basketball.

·       A “washing machine” could literally refer to any machine used for washing any item, but in everyday speech it means a machine for washing clothes.

Regardless of one’s preferred policy outcome on SOGI protections, the Court’s statutory interpretation error in Bostock matters.  As Justice Kavanaugh explains, quoting James Madison in Federalist No. 47, “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul, for the judge would then be the legislator.”  And of course, federal judges are unelected and hold life-tenure.  When judges depart from ordinary public meaning, they deprive citizens of the ability to hold their legislators accountable. 

Further, the Court’s turn to latent, hidden meaning deprives citizens of fair notice.  Citizens must be able to understand what it is that their elected representatives have enacted without turning to Straussian gymnastics. 

At the end of the day, the Court’s latent meaning approach is at odds with the role of an unelected judiciary in a democracy..  If a court can find latent hidden meanings in statutes nearly sixty years after enactment, then textualism is no longer a meaningful restraint on the judiciary.  Worse, Americans can no longer rely on their commonsense understanding of the laws that govern them.