The academic indictment of textualism was almost in. Although textualism has in recent decades gained considerable prominence within the federal judiciary,1 legal scholars remain skeptical: critics argue that textualism is insensitive to the actual workings of Congress,2 overly rigid,3 or (conversely) overly malleable4 and thus not much different from its main competitor purposivism.5 Moreover, some critics charge that textualism is not a neutral method of interpretation at all. Instead, these commentators insist, textualism is often used as a smokescreen by conservative judges to reach ideologically acceptable outcomes.6
Enter Bostock v. Clayton County.7 The case was the culmination of years of litigation asking whether discrimination against a gay, lesbian, or transgender individual qualifies as “discriminat[ion] . . . because of such individual’s . . . sex” under Title VII of the Civil Rights Act of 1964.8 The text appeared to strongly favor the plaintiffs: terminating a male employee because he is romantically attracted to men, or dismissing an employee after she announces her transition from male to female, seem like instances of discrimination because of “sex.” And to the surprise of many (who doubted that textualism could lead to such a progressive outcome), that is precisely what the Supreme Court held.9 In an opinion written by self-proclaimed textualist Justice Gorsuch10 (and joined by fellow conservative Chief Justice Roberts), the Court declared that “to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms . . . .”11
This result may be reason enough to reexamine some assumptions about textualism. But Bostock revealed something more: important tensions within textualism. After all, the dissenting opinions purported to rely on textualism, too. The majority opinion applied what this Comment refers to as “formalistic textualism,” an approach that instructs interpreters to carefully parse the statutory language, focusing on semantic context and downplaying policy concerns or the practical (even monumental) consequences of the case. The dissenting opinions offered a more “flexible textualism,” an approach that attends to text but permits interpreters to make sense of that text by considering policy and social context as well as practical consequences. To “ordinary people” in 1964, the dissenters insisted, discrimination on the basis of “sexual orientation” was categorically different from, and not a subset of, discrimination on the basis of “sex.”12 In sum, Bostock was not a case about textualism; it was a case about textualisms.
Scholarship on statutory interpretation has largely overlooked the divisions within textualism (perhaps because so many scholars reject textualism at the outset).13 The academic debate tends to focus on whether an interpreter, particularly a judge, should be a “textualist” or a “purposivist.”14 The answer, it seems, depends largely on one’s understanding of Article I of the U.S. Constitution and the legislative process.15 Textualists argue that judges must respect the (often messy) compromises reached through the bicameralism and presentment process of Article I, Section 7 by enforcing a clear text, even if it seems in tension with the apparent intent or purpose underlying the statute.16 Purposivists contend that, given the complexity of the legislative process, Congress cannot be expected to put everything in the text, and thus judges should interpret a statute so as to fulfill its overall aims and goals.17
But this focus on textualism versus purposivism papers over crucial differences within each theoretical field. As Bostock illustrates, there are competing strands of textualism. So let us suppose that a judge is convinced that the Article I lawmaking process counsels in favor of textualism. What kind of a textualist should she be?18
This Comment argues that the answer to that question has less to do with Article I than with Article III — and the deep tension faced by Article III judges in our constitutional scheme. The Constitution creates a federal judiciary that is both shaped by politics and yet designed to be independent of politics. Article II provides that Supreme Court Justices shall be nominated by the President and confirmed by the Senate.19 This scheme injects politics into the selection of federal judges. At the same time, Article III creates an independent federal judiciary — one whose members enjoy tenure and salary protections.20 Thus, upon assuming office, judges are supposed to be independent of the very political and ideological forces that gave them their jobs.
Bostock underscored this tension. Although the statutory text favored the plaintiffs’ Title VII claim, that was likely to be an uncomfortable result for many textualists. Even if textualism is (or can be) an ideologically neutral method, it has long been associated with the conservative legal movement.21 And a number of the self-proclaimed textualists on the judiciary (including President Trump’s appointee Justice Gorsuch) were selected with the enthusiastic support of social conservatives,22 many of whom emphatically opposed the plaintiffs’ claim.23 The litigation leading up to Bostock also had a partisan valence: although the Obama Administration concluded in 2012 that Title VII’s prohibition on sex discrimination “by definition” encompassed the LGBTQ community,24 the Trump Administration reversed course in 2017, insisting that such an interpretation would lead to “extreme”25 and “absurd” results.26
Interpretive method can, I argue, help a judge navigate this tension. This Comment contends that a federal judge should favor formalistic textualism — a relatively rule-bound method that promises to better constrain judicial discretion and thus a judge’s proclivity to rule in favor of the wishes of the political faction that propelled her into power. Formalistic textualism emphasizes semantic context, rather than social or policy context, and downplays the practical consequences of a decision.27 Notably, the division between formalistic and flexible textualism identified by this Comment also sheds light on some real, but underappreciated, disputes among textualists: formalistic textualism calls upon interpreters to apply only a “closed set” of normative canons28 and, relatedly, to rule out canons, such as the absurdity doctrine, that flexible textualism permits and that invite considerable judicial discretion.29 A judge should, in short, aim to insulate herself from external influences, including the pull of partisan politics that urges her to decide a case in a particular way.
Formalistic textualism may at times seem “wooden.”30 But this approach has powerful normative justifications. First, this method is consistent with, although a refinement of, early textualists’ emphasis on constraining judicial discretion. Justice Scalia worried that a judge applying purposivism might (mis)read a statute so as to “pursue [her] own objectives and desires.”31 The concern here is not that an Article III judge will aim to fulfill a personal agenda, but instead that she will be influenced by the ideological forces that drive the Article II selection process. That is, she will feel pressure to rule for her “team.” Although no method can fully cabin judicial discretion, formalistic textualism aims to constrain those impulses.32
Second, I want to advance a normative goal for textualism that has not previously been emphasized by the discourse on statutory interpretive theory. This Comment asserts that a judge should opt for formalistic textualism to help protect the legitimacy of the judiciary itself. In our polarized political environment, and in the wake of bitter confirmation fights (including over Justice Gorsuch), commentators have raised doubts about the legitimacy of the Supreme Court.33 Observers worry that, when one ideological faction captures both the Presidency and the Senate — and thus controls the Article II selection process — that faction can “control” the Supreme Court and ensure that its decisions go in only one ideological direction.34
Formalistic textualism can, I suggest, help to mitigate this pressure on judicial legitimacy. Given the mix of federal statutes, a Justice using this method should, as she moves from statutes enacted by conservative Congresses to statutes enacted by progressive Congresses, decide cases that accord with both “conservative” and “progressive” preferences. Moreover, this legitimacy-enhancing function should work even if only one or a subset of Justices adopts it. Given our country’s focus on individual judicial personalities,35 it was significant in Bostock not only that the Court issued a textualist opinion that favored a progressive cause but also that a presumed-conservative Justice was the author.
At the outset, two caveats. First, this Comment draws a sharper distinction between formalistic and flexible textualism than one sees in practice. No self-proclaimed textualist on the Supreme Court appears to clearly prefer one version or the other. Instead, the Justices vacillate between the two strands,36 perhaps in part because both have long travelled under the larger banner of “textualism.” Second, one could think of textualist practices not as fitting into two clearly defined categories, but as falling along a continuum — tending either toward the more formalistic or the more flexible end of the spectrum. On that view, this Comment offers reasons for textualists to aim for the more formalistic version — and to dispense with as many practices as possible that render textualism more flexible.
The analysis proceeds as follows. Part I offers background on the rise of textualism as a response to strong purposivism. This Part points to the early judicial treatment of Title VII’s sex provision as an important illustration of the potential dangers of purposivism. This example, which has unfortunately been largely ignored by textualists, not only provides important background for Bostock but also turns on its head the prevailing assumption that purposivism tends toward “progressive” outcomes, while textualism favors “conservative” ones. Part II then turns to Bostock and the two strands of textualism that have emerged: a more formalistic and a more flexible version. Part III advocates formalistic textualism in large part as a way to protect judicial legitimacy. But whether or not one accepts that bottom line, interpretive theorists should begin to grapple with the fact that judges apply not simply textualism but textualisms.
* Charles E. Tweedy, Jr., Endowed Chairholder of Law & Director, Program in Constitutional Studies, University of Alabama School of Law. Many thanks, for helpful comments on earlier drafts, to Josh Blackman, Sam Bray, Aaron Bruhl, Jessica Clarke, Neal Devins, Heather Elliott, Katie Eyer, Richard Fallon, David Fontana, Cary Franklin, Laura Heymann, Bert Huang, Orin Kerr, Andy Koppelman, Anita Krishnakumar, Alli Larsen, Gary Lawson, Henry Monaghan, Victoria Nourse, Jim Pfander, Susan Provenzano, William Pryor, Richard Re, Naomi Schoenbaum, Larry Solum, Kevin Stack, and Chris Walker.