Supreme Court Case on Statutory Interpretation (6/16/20; 6/24/20)

In Bostock v. Clayton County, 590 U.S. ___, ___ S.Ct. ___ (6/16/20), here, the Supreme Court Justices took up a public intramural debate that I describe as “what is it about sex that you don’t understand?”  That’s a bit flip.  The debate the Justices engaged in was about the prohibition in Title VII of the Civil Rights Act of 1964 against discrimination “because of * * * sex.”  (There are some other prohibited categories such as race, color, religion, etc., but the one in issue in Bostock was “sex.”)  Essentially, debate was among three conservative justices of the Court—Gorsuch for the majority of six with dissents by Alito and Kavanaugh.  Justice Gorsuch’s opinion attracted both Chief Justice Roberts and the liberal Justices (Ginsburg, Breyer, Sotomayor and Kagan, so I suspect that his opinion reflects some of their influence as well, but the opinion is very much Gorsuch in style).  The dissenting opinions are, in my view, hyperbolic, perhaps reflecting some disappointment that the conservative compadre, Justice Gorsuch, didn’t see the case as they did.

Bostock was not a tax case.  I discuss it on the Federal Tax Procedure Blog because it offers insight into an issue I do discuss in the Federal Tax Procedure book–statutory interpretation.  (See Practitioner Edition  pp. 9-14; and Student Edition pp. 6-9; since I have substantially revised that discussion, I offer for download here the discussion as revised to today from the working draft of the 2020 editions that will be published in August 2020.)  As I note, there are two key approach categories to statutory interpretation – textualism and purposivism.  Those are broad categories with much blending in between, but proponents of these approaches to statutory interpretation claim that their use of their preferred approach makes them more faithful agents to Congress which enacted the statute.  Generally, politically conservative judges are textualists, and politically liberal judges are purposivists (at least relative to each other, with some crossover from time to time).  Influenced by Justice Scalia, even politically liberal judges have trended toward textualism–e.g., Justice Kagan famously proclaimed in 2015 that “we’re all textualists now.”  That claim was hyperbolic but not much, as purposivist judges drifted toward the textualist camp.  But even textualist judges have a broad field to play in between pure textualism and textualism bordering on purposivism.

In Bostock, all of the judges authoring the opinions are political conservatives firmly in the textualist camp.  Hence, to see them fight about statutory interpretation is noteworthy.  I won’t try here to sort out the dynamics of what exactly happened.  I just state it in overview.

Justice Gorsuch for the majority concluded that the statutory word “sex” was broad enough to cover the type of discrimination in issue–discrimination against homosexuals or transgender.  Justices Alito and Kavanaugh, in separate opinions, concluded that the word sex was not used that way in the statute because there was no expectation, at the time of enactment, that the word was so used.  There is much subtlety in those broad statements of position which I just won’t get into here.  Rather, I offer some comments that are relevant to my discussion of the statutory interpretation issue in the Federal Tax Procedure book editions.

1.  The opinions agree that the touchstone of statutory interpretation is the “ordinary public meaning” (sometimes called original public meaning, particularly in constitutional interpretation; but imported to statutory interpretation because constitutional interpretation is really statutory (perhaps super-statutory) interpretation).  (See Gorsuch Slip op. 4; Alito Slip Op. 23 (stating issues as "How would the terms of a statute have been understood by ordinary people at the time of enactment?"); and Kavanaugh ("The ordinary meaning that counts is the ordinary public meaning at the time of enactment."); on treating constitutional and statutory interpretation the same, see Evan D. Bernick, Envisioning Administrative Procedure Act Originalism, 70 Admin. L. Rev. 807, 834 (2018).  What does ordinary or original public meaning mean?  The competing Justices have different views on that but the standard is the same.  At least as formulated, the ordinary or original public meaning is the meaning some hypothesized reader or hearer of the statutory text at the time of enactment would have ascribed to the text.  That is the be contrasted with the meaning that the drafters or speakers of the text (Congress) intended the text to mean.  I discuss some of the subtleties in that approach in the attached revised version (see particularly footnote 44.)

2.     As thus formulated as the touchstone of interpretation, Justice Gorsuch pronounces that any other touchstone would risk amending the statute by judicial fiat.  So, Justice Gorsuch proceeds to explain why the majority holding he authors is faithful that that approach.  Justice Gorsuch pronounces (Slip Op. 12) “At bottom, these cases involve no more than the straightforward application of legal terms with plain and settled meanings.”  And later (Slip Op. 24):  “This Court has explained many times over many years that, when the meaning of the statute’s terms is plain, our job is at an end.”  (The latter statement was made in the context of rejecting resort to legislative history, which, he claims may be used to “clear up ambiguity, but not create it.”)

3.     Using the same touchstone, Justice Alito boldly claims, however: “There is only one word for what the Court has done today: legislation.  The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.”

4.     On the subject of the use of legislative history, Justice Gorsuch says (Slip Op. 24-25):

Still, while legislative history can never defeat unambiguous statutory text, historical sources can be useful for a different purpose: Because the law’s ordinary meaning at the time of enactment usually governs, we must be sensitive to the possibility a statutory term that means one thing  [*25] today or in one context might have meant something else at the time of its adoption or might mean something different in another context. And we must be attuned to the possibility that a statutory phrase ordinarily bears a different meaning than the terms do when viewed individually or literally. To ferret out such shifts in linguistic usage or subtle distinctions between literal and ordinary meaning, this Court has sometimes consulted the understandings of the law’s drafters as some (not always conclusive) evidence. For example, in the context of the National Motor Vehicle Theft Act, this Court admitted that the term “vehicle” in 1931 could literally mean “a conveyance  working on land, water or air.” McBoyle v. United States, 283 U. S. 25, 26 (1931). But given contextual clues and “everyday speech” at the time of the Act’s adoption in 1919, this Court concluded that “vehicles” in that statute included only things “moving on land,” not airplanes too. Ibid. Similarly, in New Prime, we held that, while the term “contracts of employment” today might seem to encompass only contracts with employees, at the time of the statute’s adoption the phrase was ordinarily understood to cover contracts with independent contractors as well. 586 U. S., at ___–___ (slip op., at 6–9). Cf. post, at 7–8 (KAVANAUGH, J., dissenting) (providing additional examples).

Well, you get the sense of the ongoing debates over statutory interpretation.  Bostock merely illustrates a particular time and place in that debate, but not the end of it.

An edited copy of the Bostock decision distilling the 120-page decision (excluding appendices) to about 30 pages is offered by Law Prof Josh Blackman, Download our Edited Copy of Bostock v. Clayton County (Volokh Conspiracy 6/16/20), here.

Recommended additional reading (there is a lot of comment out there and I will not read it all; I just post here the comment that I think would be good for the general reader of this blog):

• Marcia Coyle, Gorsuch, Alito and Kavanaugh Tangle Over Textualism in Major Win for LGBT Workers (Law.com 6/15/20), here.
• Anita S. Krishnakumar, Three Lessons About Textualism from the Title VII Case, by Anita S. Krishnakumar (Notice & Comment 6/24/20), here.

All the talk about sex in the Bostock opinion reminded me of an actual intersection of tax and sex which I have posted on before.  Sex and Tax (Federal Tax Procedure Blog 1/7/19), here, linking to Sex and Tax (Including the Tax Division) in the Movies (DOJ Tax Division Alumni Blog 1/7/18; 1/19/19), here.  The latter Blog entry has some links to postings by Peter Reilly that are quite good.

JAT editorial note:  I am not sure I am persuaded the the original or ordinary public meaning to some hypothesized reader at the time of the approval of the Constitution or amendment or the enactment of the statute should be the sole focus of interpretation.  The argument would be that those among the governed determine what their elected representatives meant in enacting statutory text.  That just sounds a bit odd to me.  If we have a representative democracy in which the representatives act for the populace, why wouldn't the intent of the representatives as reflected in the text they enacted count for something in the process?  Indeed, why should that not be the principal focus?  For example (one I use in other contexts), if the Congress used a statutory term "white" for some benefit or cost and clearly indicated that white included off-white (a white color with a gray or yellowish tinge) which is still white, why should it control that some unidentified, hypothesized and speculated third party reader of the text would have thought if she or he had thought that white meant only white and not off-white?  It seems to me that, in a representative democracy, the intent of the representatives as reflected in the text and other real and persuasive sources of intent should control.  For example, while with DOJ Tax in the 1970s, I developed some expertise in life insurance taxation.  Some of the terms used in life insurance taxation were then meaningful only in a specialized sense that some unidentified, hypothesized and speculative third party might not understand and would define differently.  But, the representatives enacting the life insurance company taxation scheme clearly intended the specialized terms in their specialized meaning, so why should not that intent control.  And to get to the point, it seems to me that the most important referent for legislation should be the representatives' intent.  When that intent is clear from the plain meaning of the text, then so be it.  But, when that intent can be persuasively shown from extra-text sources (again I emphasized persuasively), then those sources should be used to effect faithful agency to Congress.  And, it seems to me, trying determining legislators' intent is subject to more rigor than trying to determine some unidentified, hypothesized and speculative third party reader or hearer of the text which would also, to paraphrase Justice Scalia's words for legislative history, be like looking over a crowd and picking out friends.  Again, I recommend fn. 44 in the excerpt here for the ambiguities in the referent to the unidentified, hypothesized and speculative person at the time of enactment.

Added 6/16/20 4:00pm:

After posting this blog entry earlier today, I was reading Judge Wood’s opinion in Cook County, Illinois v. Wolf, ___ F.3d ___, ___ (7th Cir. 6/10/20), here.  I came across Judge Wood's discussion of “dueling dictionaries” in statutory interpretation.  I got the concept immediately but had just not encountered the term before that I recall.  Here is relevant excerpt from the opinion:

Enter the dueling dictionaries. In Cook County's corner, we have the Century Dictionary, defining a "charge" as a person who is "committed to another's custody, care, concern or management," Century Dictionary 929 (William Dwight Whitney, ed., 1889) (emphasis added); and Webster's Dictionary, likewise defining a "charge" as a "person or thing committed to the care or management of another," Webster's Condensed Dictionary of the English Language 84 (Dorsey Gardner, ed., 1884). These suggest primary, long-term dependence. In DHS's corner, we have dictionaries defining a "charge" as "an obligation or liability," as in a "pauper being chargeable to the parish or town," Dictionary of Am. and English Law 196 (Stewart Rapalje & Robert Lawrence, eds., 1888); and as a "burden, incumbrance, or lien," Glossary of the Common Law 56 (Frederic Jesup Stimson, ed., 1881). These definitions can be read to indicate that a lesser reliance on public benefits is enough. Finding no clarity here, we move on.

Reading Cook County, I thought about the “dueling dictionaries” phenomenon in the Bostock opinions (the subject of this blog), particularly in Justice Gorsuch’s majority opinion (echoed also in the Syllabus) and more particularly in Justice Alito’s dissenting opinion with his cataloguing of dictionaries in Appendixes A (beginning on Slip Op. 55 of his opinion) and B beginning on Slip Op. 63 of his opinion).  Justice Kavanaugh seems more enamored of a reasonable meaning rather than “literal or dictionary definitions of words,” (Slip Op. 6; see also Slip Op. 10) but still ends up where Justice Alito does as to the bottom line he prefers.  I particularly liked Justice Kavanaugh’s overall discussion of the interpretation topic from Slip. Op. 6-11, which he describes as Statutory Interpretation 101.  Now, when he gets to the more advanced level (call it Statutory Interpretation 202 (my description)) after that in his opinion, I think he is less persuasive, but still worth reading.  (I think Justice Kavanaugh is generally a good read; also worth reading in this regard is Brett M. Kavanaugh, Book Review: Fixing Statutory Interpretation, 119 Harv. L. Rev. 2118, 2121 (2016), here; and Robert A. Katzmann, Response to Judge Kavanaugh’s Review of Judging Statutes, 29 Harv. L. Rev. F. 388, 393 (2016), here.