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.)
