When Law Triumphs Over Ideology: Textualism, Originalism, and Unexpected Outcomes
Justice Neil Gorsuch once wrote that judges should not be mistaken as “politicians in robes.” [1] The separation of powers between the judicial and legislative branch, while constitutionally apparent, is superseded as many label justices biased towards either conservative or progressive agendas. This particularly stems from the appointment process, wherein judges are selected by partisan Presidents who often base their decisions upon the preexisting alignments of their nominees. Such classifications carry a different meaning in the judiciary where law is not driven by politics; outcomes of court rulings are often unanticipated, solely grounded in constitutional right or wrong rather than ideological right or left. It is commonly assumed that conservative legal interpretation will lead to right-leaning decisions, and vice-versa on the progressive end. However, this misconception falls apart when confronted with actual court applications of these approaches. Therefore, traditionally conservative approaches to interpreting the law—textualism and originalism—can produce progressive outcomes because they are guided by explicit logical reasoning and are uninfluenced by partisanism.
Textualism is a theory of statutory interpretation that views the meaning of a statute as determined by the regular use of the rhetoric itself at the time of enactment, excluding legislative intent and purpose. It principally asserts that the law is what the legislature enacted and not what those legislators subjectively intended, focusing on linguistic content and conventional structures of language: grammar, syntax, semantics, etc. [2] Textualism is regarded as conservative because it limits judicial discretion and interpretation beyond the text, rejects purposive policy-driven interpretation to restructure textual meaning to fit contemporary social issues, and is outcome-independent, meaning that its application may expand or even restrict rights depending on the language used.
Meanwhile, originalism interprets constitutional provisions and statutes as fixed in accordance with the time of ratification, unable to change without a formal amendment. It focuses on the original public meaning of the law as it would have been understood at the time it was adopted. Originalism is classified as conservative because it limits “updating” constitutional meaning to “fit the times” and prioritizes adherence to historical contexts or documents to legitimize the law. Both methods restrain subjective interpretation which constrains judicial policy-making and agenda-driven rulings, or those that conserve objective moral principles exemplified in the law. Thus, in theory, though seemingly fixated on conservatism, in practice these schools of thought are not conducive to a categorically-political “type” of outcome.
To illustrate, in Bostock v. Clayton County, 590 U.S. 644 (2020), Gerald Bostock was terminated from employment after joining a gay softball league. [3] Republican Andrew Koppleman, acting counsel for the petitioner, masterfully used textualism to protect Bostock’s rights as an LGBTQ+ identifying individual from employee discrimination under Title VII of the Civil Rights Act of 1964. (45:12) Justice Alito raised the question as to whether an employer was committing discrimination specifically on the basis of sex if, under a “veil of ignorance,” they are only taking into account what the employee in question is associated with (ex. community organizations, interpersonal relationships, etc.) without knowing the gender or race of the individual involved. In response, Koppleman argued that sexual discrimination was committed, and thus, the protections of Title VII applied to Bostock’s charge of discrimination. [4] Regarding discrimination on the basis of sex, Title VII asserts that “..any treatment of a person in a manner which would be different but for the person’s sex..” would be a violation of that person’s rights as protected by the statute. Koppleman reasoned that Alito’s proposed hypothetical violated the statute's “plain terms,” stating an "...employee who dates women is “homosexual” only if that employee is female and her exclusion is accordingly based on sex.” Justice Gorsuch’s opinion expanded on the textual argument in asserting that other factors outside of the petitioner’s sex make “no difference” to the decision or that “..the employer treated women as a group the same when compared to men as a group.” In other words, if a man had a girlfriend no discrimination would occur, however as soon as the “man” in question is a “woman” with a girlfriend, treatment differs and discrimination occurs. Gorsuch explained that intentionally relying on the employee’s sex when deciding whether or not to discharge them was a statutory violation. Since discrimination based on LGBTQ+ status requires an employer to “intentionally treat individual employers differently because of their sex..,” the employer “...inescapably intends to rely on sex in decisionmaking.” Therefore, discharging Bostock on such a basis violated Title VII. Gorsuch then outlines the philosophy of textualism as a process wherein “small gestures have unexpected consequences,” and even though the Civil Rights Act was likely not originally intended to also result in LGBTQ+ rights protections, the limits of prior intentions are not sufficient reason “...to ignore the law’s demands.” Gorsuch contends that, according to the textualist school of judicial interpretation, congress’s expectations are irrelevant and partisanship is not involved—“Only the written word is the law, and all persons are entitled to its benefit.”
In Kyllo v. United States, 533 U.S. 27 (2001), Justice Scalia employed originalism to conclude that the thermal imaging of a home qualifies as a Fourth Amendment search, limiting the government’s power in criminal searches. A thermal imaging device was used to detect heat patterns consistent with marijuana grow lamps to justify the government obtaining a warrant to investigate Danny Kyllo. The Fourth Amendment states that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” ensuring that an individual is protected from unreasonable intrusion by the government into privately-owned property. [5] Scalia affirmed that the amendment draws “a firm line at the entrance to the house” and that to detect a compromise of a homeowner’s privacy, the view of the original meaning of the amendment must be taken into account. Scalia explained that the court must preserve the “degree of privacy” that existed at the time of the amendment’s adoption. When responding to the dissent’s distinction between gathering information “off the wall” via thermal technologies versus “through the wall,” Scalia argued that the technologically-innovative devices like ones that conduct thermal signaling do not create conditions that permit the government to re-classify what is constitutionally recognized as an unwarranted search. Scalia asserted that no matter how the information was obtained, its procurement would still constitute an unconstitutional entry since such interior details gathered could not otherwise have been obtained without physical intrusion into a constitutionally-protected area, at the time of the amendment’s ratification. In his opinion, Scalia affirmed that “all details are intimate details” in a home because it is “held safe from prying government eyes.” This usage of originalism leads to an unexpected outcome, deviating from the expected politically-conservative proclivity towards being “tough on crime.” Rather, the court legally conserved a constitutionally-fixed baseline, maintaining “the minimal expectation of privacy that exists, and that is acknowledged to be reasonable” amid the practice of rapidly advancing law enforcement methods.
Both Scalia and Gorsuch are recognized as conservative justices, having been appointed by Republican presidents Ronald Reagan and Donald Trump respectively, but their backgrounds serve little utility in predicting how they will apply the law and what decisions they will produce. As Gorsuch expressed when accepting his nomination to the Supreme Court, “A judge who likes every outcome he reaches is very likely a bad judge—stretching for results he prefers rather than those the law demands.” [6] Conservative judicial approaches such as originalism and textualism are not practiced in the anticipation of conservative outcomes, but in accordance with sound judicial reasoning, absent of any passion or persuasion. In the rulings outlined above, all that was conserved were the lawful protections of the rights of individuals in modern circumstances by the constitution, indifferent to evolving partisan ideologies.
Edited by Sophia Berg
Endnotes
[1] Gorsuch, Neil M. “Remarks at Supreme Court Swearing-In Ceremony (Apr. 10, 2017),” Gorsuch: Judges Aren’t “Politicians in Robes”, https://www.rollcall.com/.
[2] “Originalism vs. Textualism.” Pacific Legal Foundation, April 27, 2022. https://pacificlegal.org/
[3] Bostock v. Clayton County, 590 U.S. 644 (2020).
[4] Oral Argument at 1:23:45, Bostock v. Clayton County, 590 U.S. 644 (2020) (No. 17 1618),https://www.supremecourt.gov/oral_arguments/audio/2019/17-1618.
[5] Kyllo v. United States, 533 U.S. 27 (2001).
[6] Gorsuch, Neil M. “Remarks at White House Ceremony Accepting Nomination to the Supreme Court” (Jan. 31, 2017), https://www.whitehouse.gov/.