WEBVTT - LGBTQ Rights and the Supreme Court 0:00:15.396 --> 0:00:23.916 Pushkin from Pushkin Industries. This is Deep Background, the show 0:00:23.956 --> 0:00:27.156 where we explore the stories behind the stories in the news. 0:00:27.676 --> 0:00:32.196 I'm Noah Feldman. Until Monday of this week, it was 0:00:32.276 --> 0:00:35.716 lawful in more than half of the US states to 0:00:35.876 --> 0:00:40.716 fire an employee for being gay, bisexual, or transgender. That 0:00:40.876 --> 0:00:45.356 is no longer true. The Supreme Court has now ruled 0:00:45.436 --> 0:00:48.436 the Title seven of the nineteen sixty four Civil Rights Act, 0:00:48.676 --> 0:00:53.676 which prohibits employment discrimination because of sex protects such workers. 0:00:54.396 --> 0:00:58.956 To discuss this landmark case, we are joined by Professor 0:00:58.996 --> 0:01:04.036 Bill Eskridge. Bill is quite literally the perfect guest to 0:01:04.116 --> 0:01:07.196 discuss these topics. He's a professor at Yale Law School. 0:01:07.476 --> 0:01:10.076 He's a pioneer in the study and the teaching of 0:01:10.196 --> 0:01:12.996 gay rights law, and he spent much of his career 0:01:13.076 --> 0:01:17.996 focusing on the interpretation of statutes. He's also the author 0:01:17.996 --> 0:01:26.116 of a forthcoming book, Marriage Equality From Outlaws to in Laws. Bill, 0:01:26.196 --> 0:01:28.356 thank you so much for being here this morning. It's 0:01:28.476 --> 0:01:31.556 very rare for there to be an exactly ideal guest 0:01:31.676 --> 0:01:34.236 in response to an important news story. But in the 0:01:34.276 --> 0:01:38.476 wake of the Supreme Court's landmark decision on antidiscrimination law 0:01:38.516 --> 0:01:42.276 for gains transgender people. I knew you were the exact guest, 0:01:42.356 --> 0:01:44.956 because not only are you a pioneer in the law 0:01:44.996 --> 0:01:47.596 of gay rights, you're also one of our leading experts 0:01:47.596 --> 0:01:50.796 in statutory interpretation. So literally, the two topics of the 0:01:50.876 --> 0:01:53.756 moment are both squarely within the domain of your expertise. 0:01:53.996 --> 0:01:56.836 So I guess I want to start by saying, congratulations. 0:01:57.076 --> 0:01:59.556 You must be feeling happy about the decision in Bostock 0:01:59.556 --> 0:02:04.956 against Clayton County. That probably understates it. Very surprised it 0:02:05.036 --> 0:02:08.796 was six to three, not at all surprised that if 0:02:08.836 --> 0:02:12.836 we one as we did, it would be a textualist opinion. 0:02:12.876 --> 0:02:15.036 I've been saying this for two years. The cases have 0:02:15.116 --> 0:02:18.796 been coming for two years. My mantra to all the 0:02:19.036 --> 0:02:23.036 LGBT groups that would listen to me is that we 0:02:23.116 --> 0:02:27.636 need to understand thoroughly the text and structure as well 0:02:27.636 --> 0:02:31.636 as the precedents surrounding Title seven. And I think Justice 0:02:31.676 --> 0:02:35.156 Course Hage got it so great for the Supreme Court 0:02:35.476 --> 0:02:37.876 and maybe great for the country too, and for gaining 0:02:37.916 --> 0:02:41.876 transgender people. Let's start with a little bit of background 0:02:41.996 --> 0:02:45.556 history here on why the decision. It was a surprise 0:02:45.636 --> 0:02:49.756 to many. How long has it been since people in 0:02:49.796 --> 0:02:53.076 the gay rights movement have been arguing that Title seven, 0:02:53.276 --> 0:02:58.516 which prohibits discrimination because of sex, properly interpreted, ought to 0:02:58.636 --> 0:03:02.676 also include within that discrimination against gain lesbian people or 0:03:02.716 --> 0:03:07.996 against transgender people. Well, for most of my lifetime, LGBTQ 0:03:08.276 --> 0:03:13.956 people didn't even dare come out as gay or lesbian 0:03:14.036 --> 0:03:16.836 or whatnot at work, So there were not a lot 0:03:16.876 --> 0:03:19.836 of arguments for most of my lifetime, I would say 0:03:19.876 --> 0:03:23.916 in the nineteen nineties, the argument becomes prominent because by 0:03:23.956 --> 0:03:27.796 the nineteen nineties there were a lot of lgbt and 0:03:27.876 --> 0:03:32.476 increasingly Q people who were out of the workplace. And 0:03:32.516 --> 0:03:36.636 then the Bayer and Lewin case in Hawaii said that 0:03:37.316 --> 0:03:42.516 if you exclude from marriage a woman because she's marrying 0:03:42.556 --> 0:03:45.956 a woman rather than marrying a man, well that's sex 0:03:46.036 --> 0:03:50.716 discrimination in the same way that it's race discrimination if 0:03:50.716 --> 0:03:53.676 you exclude a white woman from marriage because she's marrying 0:03:53.716 --> 0:03:58.116 a black man. And so the confluence of both the 0:03:58.316 --> 0:04:04.236 social factors and this legal development in Bayer and Lewan 0:04:04.836 --> 0:04:08.716 generated a lot of talk within the LGBTQ and academic communities. 0:04:09.156 --> 0:04:10.836 So this has been an argument that's been going on 0:04:11.076 --> 0:04:15.356 by a conservative measure for thirty years. As many as 0:04:15.356 --> 0:04:19.236 thirty years. From the perspective of someone who's not a lawyer, 0:04:19.436 --> 0:04:23.276 it might seem kind of weird that a right to 0:04:24.396 --> 0:04:26.676 have sex as a gay person was decided by the 0:04:26.716 --> 0:04:29.156 Supreme Court in the early two thousands, that a right 0:04:29.196 --> 0:04:32.436 to gay marriage was decided by the Supreme Court in 0:04:32.476 --> 0:04:35.276 the middle of the two tens, and yet it took 0:04:35.356 --> 0:04:39.076 until twenty to achieve something that one might have imagined, 0:04:39.076 --> 0:04:41.956 at least as a non lawyer, was more obvious, namely 0:04:42.156 --> 0:04:46.956 a statutory right not to be discriminated against in the workplace. 0:04:47.996 --> 0:04:49.836 Lawyers know that the difference has something to do with 0:04:49.876 --> 0:04:53.156 a constitutional decision, which all the Supreme Courts gay rights 0:04:53.196 --> 0:04:56.196 decisions until now of great consequence had been and a 0:04:56.236 --> 0:05:00.556 decision interpreting federal law, which is what this case was. 0:05:01.596 --> 0:05:04.396 Why do you think it took longer for the Supreme 0:05:04.436 --> 0:05:07.876 Court to reach this conclusion with respect to a federal 0:05:07.956 --> 0:05:13.276 statute and it did with respect to the Constitution. Well, unfortunately, 0:05:13.276 --> 0:05:15.876 that's an easy win to answer, and that is that 0:05:16.076 --> 0:05:20.836 the whole gay marriage issue arose again in the nineteen nineties. 0:05:21.156 --> 0:05:23.396 There had been some gay marriage cases in the seventies, 0:05:23.396 --> 0:05:26.516 and they'd all lost. In the nineteen nineties, there was 0:05:26.556 --> 0:05:28.636 a revival of interest. I actually was the attorney in 0:05:28.676 --> 0:05:33.236 the first case, one in DC, and then the Hawaii case, 0:05:33.756 --> 0:05:37.076 which was also unsuccessful but got a lot of good publicity, 0:05:38.196 --> 0:05:43.796 was also in the mid nineteen nineties, and once marriage 0:05:43.836 --> 0:05:47.156 got on the horizon, both as an aspiration for the 0:05:47.276 --> 0:05:52.756 LGBTQ movement and as something to react to, the marriage 0:05:52.796 --> 0:05:56.676 issue sort of sucked up most of the oxygen. So 0:05:56.716 --> 0:06:00.276 the sex discrimination argument was there. It was made in 0:06:00.316 --> 0:06:03.196 the Vermont case in nineteen ninety nine, was made in 0:06:03.236 --> 0:06:06.116 the Massachusetts case in two thousand and three, and in 0:06:06.116 --> 0:06:09.996 some of the subsequent cases, but judge were afraid to 0:06:10.036 --> 0:06:13.076 pick up on it because of the negative reaction to 0:06:13.156 --> 0:06:16.196 Bayer and Lewa in the Hawaii case in nineteen ninety three, 0:06:16.916 --> 0:06:20.116 and so the argument sort of existed in the ether, 0:06:21.156 --> 0:06:24.556 but judges and even attorneys were afraid to raise it 0:06:25.516 --> 0:06:29.756 because it did sound orthogonal to the basic equality arguments 0:06:29.756 --> 0:06:32.396 that we were making in cases like Roma versus Evans 0:06:32.396 --> 0:06:35.236 in nineteen ninety six, Lawrence versus Texas, and the sodomy 0:06:35.276 --> 0:06:39.116 case in two thousand and three, and even Windsor in 0:06:39.116 --> 0:06:42.956 the United States, the defensive marriage ACKed case that was 0:06:42.996 --> 0:06:46.316 decided in twenty thirteen, followed as you know by Obergefeld. 0:06:46.356 --> 0:06:49.316 The marriage case, it seems on the surface again to 0:06:49.356 --> 0:06:51.836 a non lawyer, if I can pretend to be when 0:06:51.876 --> 0:06:53.196 for a minute, if I can try to unlearn what 0:06:53.196 --> 0:06:56.036 I learned in law school, they're both about equality. The 0:06:56.076 --> 0:06:58.836 marriage equality argument was an argument for equal treatment. The 0:06:58.876 --> 0:07:02.796 antidiscrimination argument is an argument for equal treatment. Why was 0:07:02.876 --> 0:07:08.476 it that for political reasons or complex jurisprudential reasons? The 0:07:08.556 --> 0:07:11.636 one argument, and the marriage quality argument was not only 0:07:11.836 --> 0:07:16.916 pushed but was successful, with Justice Kennedy himself a Republican appointee, 0:07:17.436 --> 0:07:20.476 making the relevant crucial decisions along the way writing them. 0:07:21.076 --> 0:07:24.076 But the equality argument in the context of equal treatment 0:07:24.076 --> 0:07:28.356 in the workplace antidiscrimination law wasn't a successful Well. I 0:07:28.396 --> 0:07:31.916 think it's actually easy to understand in retrospect, and that 0:07:32.116 --> 0:07:38.276 is that the average gay, friendly, straight person literally could 0:07:38.356 --> 0:07:40.716 not understand the argument. And I think lawyers had a 0:07:40.716 --> 0:07:44.756 harder time than others because lawyers love symmetry. So if 0:07:44.756 --> 0:07:47.236 you make an equal protection argument to a lawyer or 0:07:47.236 --> 0:07:51.676 to a judge, and you say this group Roman Catholics 0:07:52.156 --> 0:07:57.156 are discriminated against because of their religion. There is a 0:07:57.236 --> 0:08:01.636 perfect correlation in your mind between the classification religion and 0:08:01.756 --> 0:08:05.596 the group Catholics. If women are being excluded because of 0:08:05.596 --> 0:08:09.516 their sex, you can understand that, whether you're in favor 0:08:09.636 --> 0:08:12.756 of striking it down or not, because the group the 0:08:12.956 --> 0:08:19.036 class matches up perfectly to the classification. For LGBT claims 0:08:19.156 --> 0:08:25.636 under the sex discrimination argument, the classification sex did not 0:08:25.716 --> 0:08:29.556 seem to match up with the group lesbians, gay men, 0:08:29.596 --> 0:08:34.076 and bisexuals in the minds of many judges. Almost twenty 0:08:34.156 --> 0:08:37.956 years ago, I was at a conference where there was 0:08:37.956 --> 0:08:41.636 a Supreme Court justice present, and I and another judge 0:08:42.116 --> 0:08:45.156 made a presentation of the sex discrimination argument almost twenty 0:08:45.236 --> 0:08:50.556 years ago. And this judge was gay friendly, fine, and 0:08:50.636 --> 0:08:53.076 we explained the argument, and the judge says, no, no, no, 0:08:53.356 --> 0:08:54.996 that doesn't make sense to me. And I said no, 0:08:55.036 --> 0:08:57.836 it's like Loving versus Virginia. Just remind people Loving against 0:08:57.876 --> 0:09:01.196 Virginia is the case in which the Supreme Court held 0:09:01.276 --> 0:09:04.316 that it was unconstitutional for the state to prohibit black 0:09:04.316 --> 0:09:06.756 and white people from being married in Virginia exactly. And 0:09:06.796 --> 0:09:11.556 the argument was, if you prohibit a woman from a 0:09:11.636 --> 0:09:15.276 white woman from marrying a black man, the variable the 0:09:15.356 --> 0:09:18.276 classification that changes the result is the race either of 0:09:18.316 --> 0:09:20.676 the woman or of the spouse. We were making that 0:09:20.796 --> 0:09:26.476 argument and it took three link the explanations by the 0:09:26.476 --> 0:09:30.316 ball professor before the judge even understood it, a liberal 0:09:30.396 --> 0:09:34.156 judge and then just oh, I finally now get it. 0:09:34.676 --> 0:09:37.356 Well knowing would ever accept that? Can you say if 0:09:37.396 --> 0:09:40.716 that liberal justice was still on the court and voted 0:09:40.796 --> 0:09:46.916 in this case? Maybe maybe? Okay, good answer. And indeed 0:09:46.916 --> 0:09:50.116 that brings us to the argument that Justice Neil Gorsuch, 0:09:50.316 --> 0:09:53.836 Trump appointee self professed textualists. And we're going to come 0:09:53.836 --> 0:09:56.516 to textualism in just a moment made for the court 0:09:56.716 --> 0:10:00.156 joined in this case by the liberals on the court 0:10:00.876 --> 0:10:03.916 plus Chief Justice John Roberts, so a six to three decision. 0:10:04.556 --> 0:10:07.436 Why don't you just lay out that argument for us, 0:10:07.476 --> 0:10:09.356 just for people who may not have had a to 0:10:09.356 --> 0:10:11.396 read one hundred and seventy five pages of the opinion yet, 0:10:11.396 --> 0:10:12.756 because it's more or less the argument that you were 0:10:12.756 --> 0:10:15.796 advancing twenty years ago. Yeah, it's a very simple argument. 0:10:16.356 --> 0:10:20.996 The statutory text says the following employers cannot and here 0:10:21.036 --> 0:10:25.436 I'm pretty much quoting the statute cannot discriminate against any 0:10:25.556 --> 0:10:31.796 individual because of such individuals sex. And the argument is 0:10:31.916 --> 0:10:36.716 very simple. If an employer has a female employee and 0:10:36.756 --> 0:10:39.276 the employer fires hers as well, I'm really tired of 0:10:39.316 --> 0:10:42.196 having women in the workplace, that's obviously a violation of 0:10:42.236 --> 0:10:46.436 the statue. If the employer says, oh, well, I'm okay 0:10:46.436 --> 0:10:49.676 with having women employees, but I'm not okay with having 0:10:49.716 --> 0:10:54.676 women employees who date women, then that is discrimination because 0:10:54.716 --> 0:10:59.316 of sex. The classification, the regulatory variable the changes is 0:10:59.396 --> 0:11:02.636 the sex of the employee. The employee were a man 0:11:02.756 --> 0:11:07.356 who dated women, that would be fine. So any discrimination 0:11:07.436 --> 0:11:10.996 against an individual group and an individual because of that 0:11:11.116 --> 0:11:16.036 individual sex, even if it's just a motivating factor among others, 0:11:16.116 --> 0:11:19.436 that violates the statute. They could have disposed of it 0:11:19.636 --> 0:11:23.676 nine to nothing in a three page opinion where they says, 0:11:23.756 --> 0:11:25.756 this is what the statute says, and here's how it 0:11:25.796 --> 0:11:30.076 applies to mister Bostock or mister Zardav And then for 0:11:30.156 --> 0:11:34.636 transgender plaintiff Stevens, then it applies in the same sort 0:11:34.676 --> 0:11:37.316 of way, but with a slightly different analysis. When you 0:11:37.356 --> 0:11:40.716 say it applies individuals but not necessarily to groups. That 0:11:40.796 --> 0:11:42.596 was an issue that came up at oral argument in 0:11:42.636 --> 0:11:45.356 this case, how do you read the holding here? Would 0:11:45.356 --> 0:11:47.876 it be lawful under the statute after this interpretation for 0:11:47.916 --> 0:11:52.396 an employer to say I don't hire anyone who happens 0:11:52.436 --> 0:11:54.636 to be gay lesbian, it seems that would not be 0:11:54.796 --> 0:11:57.836 lawful under this holding. I think that would not be lawful. 0:11:58.636 --> 0:12:02.356 But again, remember there's no Title seven lawsuit usually until 0:12:02.436 --> 0:12:05.596 there's an employee who says I was fired or not 0:12:05.676 --> 0:12:07.956 given a job or for some of the recent discriminated 0:12:07.956 --> 0:12:11.996 against because my sex basically right, So, yeah, an employer 0:12:12.076 --> 0:12:14.396 can say that, but wow, that's an employer asking to 0:12:14.436 --> 0:12:17.716 be sued. That's an employer sort of handing on a 0:12:17.756 --> 0:12:20.396 silver platter. Here is your settlement. How much do I 0:12:20.436 --> 0:12:23.156 owe you? Well, we may see test cases of that 0:12:23.276 --> 0:12:26.836 sort by employers who operate the basis of principle. The 0:12:26.916 --> 0:12:30.436 test cases will see will not be that at all. Instead, 0:12:30.476 --> 0:12:33.996 at the end of the opinion, Justice Corsage said at 0:12:34.076 --> 0:12:36.876 least one of the cases that was a religious allowance 0:12:36.996 --> 0:12:40.116 claim raised by the employer, and Justice Gorgon said that 0:12:40.236 --> 0:12:42.756 was not an issue on review, We're not going to 0:12:42.756 --> 0:12:45.756 address it. But then he sort of throws in, hey, 0:12:46.116 --> 0:12:50.596 bringing those lawsuits on and so that's left hanging. It's 0:12:50.636 --> 0:12:53.516 like a hanging chad. Where is that going to leave us? 0:12:53.916 --> 0:12:55.796 So I think those are the kinds of cases that 0:12:55.836 --> 0:12:59.236 will now see that will be test cases of some sort. 0:13:00.036 --> 0:13:03.236 Just to be clear, I think it's fairly explicit in 0:13:03.596 --> 0:13:06.116 the opinion about where it's going to leave us. The 0:13:06.196 --> 0:13:10.636 Religious Freedom Restoration Act is overwhelmingly likely be interpreted to 0:13:10.636 --> 0:13:15.876 produce an exception to this anti discrimination principle for an 0:13:15.876 --> 0:13:19.156 employer or an organization who can make a case of 0:13:19.316 --> 0:13:22.316 sincere religious motivation. I mean, of course, it is now 0:13:22.316 --> 0:13:24.876 the swing vote on this with Roberts, and it's very 0:13:24.876 --> 0:13:26.676 hard to imagine, giving what he said, that he would 0:13:26.676 --> 0:13:28.996 reach any other conclusion than the one he already hinted at. 0:13:29.756 --> 0:13:31.676 I think it's hard to predict how this is going 0:13:31.716 --> 0:13:35.356 to play out for several reasons. And one reason is 0:13:36.116 --> 0:13:41.236 that most religious employers do not want to discriminate, and 0:13:41.316 --> 0:13:44.596 so it's going to be interesting to see where we 0:13:44.716 --> 0:13:48.356 find employers that want to get out a limb on 0:13:48.396 --> 0:13:52.836 this particular issue. But you're right, I think that we're 0:13:52.836 --> 0:13:55.876 going to see some of those cases. It is perilous 0:13:55.916 --> 0:13:58.116 to predict exactly what the Supreme Court is going to 0:13:58.156 --> 0:14:00.676 do with them, but it is very safe to say 0:14:00.716 --> 0:14:04.036 that Justice Corsitch is open to these claims as his 0:14:04.116 --> 0:14:06.796 chief Justice Roberts, as are some of the liberals as well. 0:14:07.556 --> 0:14:20.556 We'll be right back. Let's shift now to talking about 0:14:21.036 --> 0:14:25.596 the issue that's major here for lawyers beyond the huge 0:14:25.636 --> 0:14:30.796 win for the LGBTQ community, namely the ascendance of the 0:14:30.796 --> 0:14:36.316 theory of statutory interpretation known as textualism. And to give 0:14:36.356 --> 0:14:40.756 the listener context, the argument for textualism using that term 0:14:40.796 --> 0:14:43.396 more or less begins with Justice Scalia and has been 0:14:43.876 --> 0:14:47.076 The cause has been taken up by a group of academics, 0:14:47.076 --> 0:14:50.116 including my dean at Harvard Law School, John Manning, and 0:14:50.396 --> 0:14:53.556 you and your co author at the time, Phil FRICKI 0:14:53.996 --> 0:14:56.716 were engaged in what I would call an academic battle 0:14:56.836 --> 0:15:02.716 royale for years, with the textualists offering your own alternative, 0:15:02.756 --> 0:15:06.396 which you guys called dynamics statutory interpretation, and others have 0:15:06.476 --> 0:15:09.036 attached different names to it. I have been watching this 0:15:09.236 --> 0:15:12.276 with great fascination and attention for many, many years now, 0:15:12.356 --> 0:15:14.876 really since I was a student. I've always been on 0:15:14.916 --> 0:15:17.196 your side of the debate. I'm still on your side 0:15:17.236 --> 0:15:20.036 of the debate, but now the Supreme Court seems to 0:15:20.076 --> 0:15:23.156 be almost entirely on the other side of the debate. 0:15:23.316 --> 0:15:24.876 So I wonder if you would start by just giving 0:15:24.916 --> 0:15:28.476 us a one oh one on what you think textualism 0:15:28.676 --> 0:15:31.876 is according to its proponents, and then you can tell 0:15:31.916 --> 0:15:34.316 us why the textualists are wrong, even though in this 0:15:34.396 --> 0:15:38.116 case they've given you just what you wanted. Well, Noah, 0:15:38.116 --> 0:15:41.316 I'm with the spirit of your question. It's very interesting. 0:15:41.556 --> 0:15:43.916 This is a great debate in the US Supreme Court, 0:15:44.516 --> 0:15:48.276 and it's entirely a textual debate. With course, it's writing 0:15:48.276 --> 0:15:51.956 for the majority, Kavanaugh writing for himself, and descent, Aledo 0:15:52.036 --> 0:15:55.996 writing for himself, and Thomas and Descent. So textualism, it 0:15:56.076 --> 0:16:00.356 seems to me, is the dominant mode of discourse in 0:16:00.436 --> 0:16:03.516 all three of the opinions, but they have different inflections. 0:16:04.156 --> 0:16:07.116 They all start the proposition that the only thing that's 0:16:07.156 --> 0:16:09.756 enacted in law is the text of the statue. The 0:16:09.876 --> 0:16:12.756 job of the judge is to interpret the text as 0:16:12.796 --> 0:16:16.836 an ordinary reader would do, full stop. Don't look at 0:16:16.916 --> 0:16:19.956 legislative history. You don't care if it goes against the 0:16:19.996 --> 0:16:24.356 statutory purpose, though you might follow some statutory precedence, and 0:16:24.396 --> 0:16:27.756 there's some division in the textualist camp on that, and 0:16:27.796 --> 0:16:30.956 just to explain that again for non lawyers. The idea 0:16:31.076 --> 0:16:33.036 is that when you're interpreting a statute, if you're a judge, 0:16:33.036 --> 0:16:35.476 instead of asking, gee, what are the people who passed 0:16:35.556 --> 0:16:37.436 this statute think? What did they say to each other? 0:16:37.516 --> 0:16:39.716 What are they put in the congressional record? What were 0:16:39.756 --> 0:16:42.156 their purposes? What can we reconstruct about what they thought 0:16:42.236 --> 0:16:43.956 or should have thought or might have thought, You should 0:16:43.996 --> 0:16:47.316 ignore all of that, according to textualism and just look 0:16:47.316 --> 0:16:51.236 at the words. The strictest textualists would say exactly that, 0:16:52.076 --> 0:16:55.796 and they would say that it doesn't matter subjectively what 0:16:55.916 --> 0:16:59.956 the enacting legislators thought or what their goal was. All 0:16:59.996 --> 0:17:03.436 that matters is the way that it's received by the 0:17:03.676 --> 0:17:08.036 body politic. We the people are the audience and ought 0:17:08.076 --> 0:17:10.476 to control the meaning of the statute. That's their argument. 0:17:11.196 --> 0:17:15.156 I would characterize Phil Fricky and my approach as a 0:17:15.156 --> 0:17:18.196 pragmatic approach, and I think that is still the reigning 0:17:18.196 --> 0:17:20.996 approach in the Supreme Court, and that is that any 0:17:21.516 --> 0:17:25.076 very hard case of statutory interpretation involves looking at a 0:17:25.156 --> 0:17:28.516 number of sources, the text of the statute, statutory precedence, 0:17:29.316 --> 0:17:31.716 and then you also in our opinion, ought to consider 0:17:31.836 --> 0:17:37.956 legittive history, agency and regulatory history, and larger norms. Now, 0:17:38.156 --> 0:17:40.676 I believe the Gorsage opinion. And this is exactly the 0:17:40.756 --> 0:17:45.276 argument made by Justice Alito in his descent. The Gorsage 0:17:45.276 --> 0:17:52.116 opinion is a brilliant synthesis of textualism and what you're 0:17:52.156 --> 0:17:57.396 calling and I call sometimes dynamic statutory interpretation, because Aldo 0:17:57.516 --> 0:18:02.836 points out this is a very wildly evolutive approach to 0:18:02.876 --> 0:18:07.356 these words. And Aldo says, in nineteen sixty four, if 0:18:07.356 --> 0:18:10.636 you'd asked a member of Congress, you're protecting women and ships? Sure? 0:18:11.036 --> 0:18:13.436 Are you protecting men? Sometimes they might scratch their head 0:18:13.476 --> 0:18:16.516 and say, well, maybe, And how about homosexuals? Are you're 0:18:16.556 --> 0:18:18.876 protecting them? And just as the Lado jumps up and 0:18:18.916 --> 0:18:21.716 down from dozens of pages and said no, they were 0:18:21.716 --> 0:18:25.076 considered psychopaths and criminals and all sorts of other things. 0:18:25.596 --> 0:18:28.996 So he says, this cannot be the original ordinary meaning 0:18:28.996 --> 0:18:33.636 of the statute. And Gorsage's response is, no, you look 0:18:33.636 --> 0:18:37.836 at the words and then you apply the words to 0:18:37.836 --> 0:18:41.836 today's circumstances. Now here's the step that's missing, but that 0:18:41.996 --> 0:18:45.596 he and the majority are making. Between sixty four, when 0:18:45.596 --> 0:18:48.716 the statute is passed, and today when we have the decision, 0:18:49.676 --> 0:18:55.836 the object of the discussion has changed. Indeed, language has changed. 0:18:56.916 --> 0:18:59.276 In nineteen sixty four, if you'd asked a member of 0:18:59.276 --> 0:19:02.796 Congress what about those gay people, member of Congress have said, 0:19:02.956 --> 0:19:06.516 I like happy constituents. That's all it would have meant. 0:19:06.836 --> 0:19:10.036 But if you'd said, what about homosexuals and other sex perverts, 0:19:10.196 --> 0:19:12.676 Congress says, oh, yeah, they're a very big danger to 0:19:12.756 --> 0:19:16.916 society and so forth. So literally, what's going on in 0:19:16.916 --> 0:19:20.196 the background, and this is always what's going on with textualism, 0:19:20.476 --> 0:19:25.596 is that society has changed, language has changed, and they're 0:19:25.636 --> 0:19:29.316 not unrelated to one another. So let me pause you there, 0:19:29.316 --> 0:19:31.436 because at this point I think someone who is not 0:19:31.516 --> 0:19:35.596 taking the advanced Eskridge course on statutor interpretation, I think 0:19:35.876 --> 0:19:38.956 might be forgiven for feeling a little confused. Let's walk 0:19:39.036 --> 0:19:44.036 people through it. The Supreme Court majority here, Justice Coursitch says, 0:19:44.076 --> 0:19:47.796 I am a textualist. I am not doing what Eskridge 0:19:47.836 --> 0:19:50.996 says I am doing. He says, I am not looking 0:19:50.996 --> 0:19:53.916 at the evolving meaning of the statute. I'm not looking 0:19:53.916 --> 0:19:57.956 at a changed sociocultural context. I'm just reading the words 0:19:57.996 --> 0:20:01.956 and Gorsitch insists, I'm reading them exactly the way a 0:20:02.076 --> 0:20:04.316 person would have read them had they been exposed to 0:20:04.356 --> 0:20:07.196 this logic. In nineteen sixty four, when the law was passed, 0:20:07.876 --> 0:20:11.116 the descent Alito and Justice Kevna, in two different to 0:20:11.196 --> 0:20:15.916 sens say no, that's not true, gore such, you're actually 0:20:15.956 --> 0:20:20.556 doing the very thing that is bad from our perspective, 0:20:21.076 --> 0:20:24.916 namely s grid style statutory interpretation that looks beyond the words, 0:20:25.076 --> 0:20:28.316 and Gorsuch's responses, no, I'm not. The upshot is that 0:20:28.396 --> 0:20:32.516 all of the opinions for the court, everybody claims that 0:20:32.556 --> 0:20:35.876 the worst thing you can do is to engage in 0:20:35.956 --> 0:20:40.316 dynamic statutory interpretation. The official orthodoxy, the stated orthodoxy of 0:20:40.476 --> 0:20:45.356 all of the justices here is textualism. Textualism, textualism, textualism ascendant. 0:20:45.716 --> 0:20:48.836 Now I hear you making the argument, which is fascinating, 0:20:49.596 --> 0:20:53.996 that in fact, the majority is not doing textualism. It 0:20:54.076 --> 0:20:57.716 thinks it's doing textualism, but it's not really doing textualism. 0:20:57.756 --> 0:21:00.636 And therefore that the dissenters are correct in their characterization 0:21:00.636 --> 0:21:04.316 with a majority opinion, and that Gorsuch is just wrong 0:21:04.556 --> 0:21:07.836 or possibly in your view, lying about what he's in 0:21:07.876 --> 0:21:10.116 fact doing so, let me ask you a psychological question. 0:21:10.156 --> 0:21:12.476 Do you really think that Gorsach, who's trying very hard 0:21:12.516 --> 0:21:16.796 to take up the mantle of justice Scalia, is deceived 0:21:16.836 --> 0:21:18.916 about what he's doing, that he thinks he's doing textualism 0:21:18.956 --> 0:21:21.316 and he doesn't. Or do you think he's doing something 0:21:21.676 --> 0:21:24.316 different than that and maybe a little more secretive. Well, 0:21:24.316 --> 0:21:27.636 I'm not going to psychoanalyze poor Justice Gorsage, but what 0:21:27.756 --> 0:21:31.156 I will say is I think it's a synthesis. He's 0:21:31.196 --> 0:21:34.556 both a textualist and a dynamic interpreter. Let me give 0:21:34.876 --> 0:21:38.196 your audience a very simple example. Nineteen sixty four, you 0:21:38.196 --> 0:21:41.636 pass a statute saying no motor vehicles in the park, 0:21:41.916 --> 0:21:44.196 and there are a number of predictable applications. In some 0:21:44.236 --> 0:21:50.596 close cases twenty twenty, a segue is zipping through the park. Well, 0:21:50.636 --> 0:21:53.676 that didn't exist in nineteen sixty four. Are you being 0:21:53.676 --> 0:21:56.996 a dynamic interpreter to say we're going to apply vehicle 0:21:57.156 --> 0:22:01.276 to this new fangled gadget? And Scalia would answer no, 0:22:01.396 --> 0:22:06.396 that's still textualism. Textualism can be applied to things that 0:22:06.516 --> 0:22:09.716 happen after in nineteen sixty four, Well, what about things 0:22:09.796 --> 0:22:13.636 that are existed in sixty four, but have changed motorized 0:22:13.676 --> 0:22:16.796 wheelchairs ninety sixty four, and I said, well, there's some 0:22:16.836 --> 0:22:18.956 motorized wheelchairs, but we're not going to apply it because 0:22:18.956 --> 0:22:21.716 it goes so slowly. People of disabilities need them, and 0:22:21.716 --> 0:22:25.996 so on twenty twenty, there's a thing called the bach 0:22:26.196 --> 0:22:29.676 Auto Super four, which is a motorized wheelchair that looks 0:22:29.716 --> 0:22:32.156 like a little car that can go up rough terrain 0:22:32.196 --> 0:22:34.676 and can go pretty fast. Fifteen to twenty miles an 0:22:34.676 --> 0:22:38.236 hour might apply to that. So that's something that existed 0:22:38.236 --> 0:22:43.196 in sixty four but has changed in the intervening however 0:22:43.236 --> 0:22:45.956 many years it's been since sixty four. And the same 0:22:45.996 --> 0:22:49.356 thing is true of gay people. I existed, and I 0:22:49.436 --> 0:22:52.676 was gay in nineteen sixty four. I would not have 0:22:52.676 --> 0:22:54.636 called myself gay. I didn't know what that word met 0:22:54.636 --> 0:22:58.876 in nineteen sixty four. Literally, the language to describe people 0:22:58.956 --> 0:23:02.716 like me is not the same today as it had 0:23:02.716 --> 0:23:06.036 been sixty four. And I'm a different person. I'm like 0:23:06.356 --> 0:23:12.356 the segue, I'm either new or unlike the bach Auto 0:23:12.516 --> 0:23:16.076 super four. I'm a ramped up version of what I 0:23:16.196 --> 0:23:19.916 was in nineteen sixty four. So you can say you're 0:23:19.956 --> 0:23:23.876 a textualist, but What has changed and how can this 0:23:23.956 --> 0:23:28.956 not affect text is that people of men and women 0:23:28.996 --> 0:23:31.596 who have sex or date people of the same sex 0:23:32.436 --> 0:23:37.036 are now conceptualized completely differently. There's a different language to 0:23:37.116 --> 0:23:43.036 describe them, and therefore their relationship to that language discriminate 0:23:43.116 --> 0:23:48.316 against any individual because of such individual sex has correlatively changed. 0:23:48.676 --> 0:23:54.796 So textualism and dynamism at the same time, let's talk 0:23:54.796 --> 0:23:57.636 a little bit about where this is all going to 0:23:57.756 --> 0:24:02.076 go in the future. I am fascinated to see Justice 0:24:02.116 --> 0:24:06.436 course making a bid for the conservative intellectual leadership of 0:24:06.476 --> 0:24:10.676 the Court through a holding that on the surface is 0:24:10.716 --> 0:24:13.316 being embraced by liberals and will not be at least 0:24:13.316 --> 0:24:16.516 immediately embraced by conservatives. My own view is at Gorsuch 0:24:16.636 --> 0:24:19.996 is playing the long game, and he expects and believes 0:24:19.996 --> 0:24:22.516 that conservatives won't be that angry about this opinion in 0:24:22.556 --> 0:24:27.036 three or four years. That it's liberals who make judicial 0:24:27.076 --> 0:24:30.556 reputation because most law professors are liberal. That's an unsurprising fact, 0:24:30.876 --> 0:24:33.916 and most law professors who care about the Supreme Court 0:24:33.956 --> 0:24:37.476 spend some of our time making judicial reputations. And we're 0:24:37.476 --> 0:24:39.476 now all going to have to look at Neil Gorsuch, 0:24:39.556 --> 0:24:43.156 Trump appointee and say, wow, pretty good. You know, he 0:24:43.236 --> 0:24:46.956 followed his interpretation of the law to a place that 0:24:47.036 --> 0:24:51.436 did not necessarily match his political preconditions. So liberals will 0:24:51.436 --> 0:24:53.236 now have to be nice to Gorsuch whether they like 0:24:53.276 --> 0:24:58.116 it or not. Conservatives will get over their frustration. Over time, 0:24:58.196 --> 0:25:01.836 Gorsuch's position as the replacement for Justice Scalia as the 0:25:01.876 --> 0:25:05.596 conservative intellectual leader of the court will be consolidated. That's 0:25:05.596 --> 0:25:08.596