Daniel Hemel on the Supreme Court's Textualism and the Recent Decision on LGBTQ Rights
The problem with that big gay rights decision? It’s not really about gay rights.
“We’re all textualists now,” Justice Elena Kagan famously said in a 2015 lecture at Harvard Law School honoring her then-Supreme Court colleague Antonin Scalia. Her remark paid tribute to Scalia’s success in championing an interpretive approach that focuses on the ordinary meaning of legislative text and that downplays the unexpressed intentions or broader purposes of a statute’s drafters.
This week’s 6-to-3 decision that federal employment discrimination law protects gay, lesbian and transgender individuals would seem to prove Kagan’s point. The battle between Justice Neil M. Gorsuch, who wrote the majority opinion, and three fellow conservatives who dissented is pitched almost entirely on textualist terrain. (Chief Justice John G. Roberts Jr. joined Kagan and three other liberals in the majority.) There are no sweeping arguments in favor of (or opposed to) the rights of gay, lesbian and transgender citizens. Rather, the justices fight fiercely over how the text of the law should be construed, while agreeing unanimously that the text is what trumps.
Certainly, the bottom-line outcome of the decision ought to be celebrated. It is an enormous victory for equality, and nothing that anyone says about interpretive methodology can or should detract from that fact. But the absence of language invoking conceptions of justice comes with a cost. At a time when no other national institution appears capable of carrying the mantle of moral leadership, the court’s clinical approach leaves yet another vacuum.
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