There was a curious exchange in the most recent cases testing the boundaries of Title VII’s proscription against sex discrimination in employment. In R.G. & G.R. Harris Funeral Homes v. EEOC, an employee who alleges she was fired for identifying as a transgender woman claims that that adverse action violates the Civil Rights Act of 1964. Much of the focus in the oral arguments for Harris Funeral Homes, and a set of closely-related sexual orientation discrimination cases heard that same day, centered on the text of the statute. No doubt part of this emphasis arose from the plaintiffs’ strategic calculation that a tight textual argument may be enough to sway one of the Court’s staunchest textualists, Justice Neil Gorsuch, even if he may not be a natural ally in these cases. But some of his questioning raised concerns that he may, in the end, be only a “faint-hearted textualist”—much as Justice Scalia confessed that “in a crunch” he might have “prove[d] a faint-hearted originalist.”
To be sure, most of Justice Gorsuch’s questioning during the hours of oral argument that consumed both Harris Funeral Homes and Bostock v. Clayton County did revolve around the text. What did “sex” mean to the general public at the time the Civil Rights Act of 1964 was signed into law? And how did that definition of sex entail that differential treatment of employees based on their sexual orientation or gender identity constituted discrimination “because of sex”? But about midway through the arguments in Harris Funeral Homes, he asked the plaintiff’s counsel about a different sort of concern:
JUSTICE GORSUCH: I’m with you on the textual evidence. It’s close, okay? We’re not talking about extra-textual stuff. We’re – we’re talking about the text. It’s close. The judge finds it very close. At the end of the day, should he or she take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that – that Congress didn’t think about it —
COLE: So —
JUSTICE GORSUCH: — and that – that is more effective — more appropriate a legislative rather than a judicial function? That’s it. It’s a question of judicial modesty.
In other words, Justice Gorsuch suggested that when the textual question is close, a judge might base her decision on whether one interpretation is more likely to create bad consequences than the other. That would be true, it appears, even if the judge concludes that the bad consequences interpretation is the best way to read the text.
Compare that view of the limits of textualism with the Court’s express disregard for consequences in District of Columbia v. Heller—an self-styled originalist opinion that focused very closely on text. There, Justice Breyer decried in dissent the massive social impact of the Court’s ruling that the government could not regulate handguns in the way it determined best served the public interest. Justice Scalia, himself a staunch textualist, dismissed these kinds of concerns in his opinion for the majority. “We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution.” But, he declared, those concerns have nothing to do with deciphering the meaning of the Second Amendment’s text. “The enshrinement of constitutional rights necessarily takes certain policy choices off the table.”
Even conservative judges have critiqued Heller’s disregard for the legislative judgments about societal consequences. Judge J. Harvie Wilkinson, a Reagan-nominated judge who sits on the Fourth Circuit, criticized Heller for embodying two key shortcomings he finds also inhere in the Court’s Roe v Wade decision: “each represents a rejection of neutral principles that counseled restraint and deference to others regardless of the issues involved” and “each represents an act of judicial aggrandizement: a transfer of power to judges from the political branches of government—and thus, ultimately, from the people themselves.” Or, to translate Judge Wilkinson’s critique into Justice Gorsuch’s terms, “[i]t’s a question of judicial modesty.”
In his own decisions when Second Amendment questions arose, Judge Wilkinson has taken this more Burkean route that considers the consequences of choosing to read the right one way as opposed to another. As he said in a 2011 case:
To the degree that we push the right beyond what the Supreme Court in Heller declared to be its origin, we circumscribe the scope of popular governance, move the action into court, and encourage litigation in contexts we cannot foresee. This is serious business. We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights.
I think can think of two rejoinders here that might justify a textualist’s willingness to consider consequences in a Title VII case but not in Heller or other Second Amendment cases. One might be that constitutional cases are different. There, unlike in the statutory context, there’s no fallback where Congress can decide the questions that its own statute doesn’t completely clarify. But that argument also cuts the other way; if fears of “massive social upheaval” arise in the statutory interpretation context, surely Congress’s power to change the statute at any time to prevent or correct such consequences mutes, if not outright refutes, this argument. Congress can avert whatever consequences the Court might fear from its ruling—and if Congress doesn’t, then it bears the responsibility for what follows, not the Court.
The other rejoinder might be that, for the right to keep and bear arms announced in Heller, the question wasn’t close, and so the textualist had no choice to do otherwise whatever the consequences. If the Heller majority ever truly believed that issue to be clear-cut, such a position is only getting harder to maintain with more recent historical research and linguistic analysis. Historians like Jennifer Tucker, Tim Harris, Saul Cornell, and others have questioned the Heller Court’s assumptions and descriptions of the early understanding of the right to keep and bear arms. And analysis of data from large corpora of early American and English usage (i.e., corpus linguistics) by scholars like Dennis Baron & Alison LaCroix, Neal Goldfarb, and others has pretty persuasively shown that, for example, the phrase “bear arms” almost always bore a military connotation at the time of the Founding. Even some Heller-sympathetic voices have acknowledged the strength of the corpus evidence (e.g., Josh Blackman). At the very least, this research shows that the question the Court confronted in Heller was, in Justice Gorsuch’s words, “very close.”
Given Justice Gorsuch’s concern with consequences in this case, some critics have questioned whether he is tempering his commitment to textualism to reach a policy outcome that more closely aligns with those of the political party of the President who appointed him. But if his textualism is restrained by consequentialist concerns in the Title VII context, then it ought to also be so across the board; as a new wave of arguments show, there are some very real consequences that follow a libertarian reading of the Second Amendment.