At Law & Liberty, John McGinnis: Logic Without History. From the introduction:
Few Supreme Court majority opinions have provoked such mirror-image approbation as Bostock v. Clayton County and United States v. Skrmetti. Bostock let progressives hail Title VII as a new charter of LGBT workplace equality. Skrmetti, by contrast, let conservatives cheer a state’s power to withhold puberty blockers from minors, preventing premature gender transitioning. Scratch the varnish, however, and both triumphs expose the similar flaw in reasoning, even though Skrmetti at least lands on the correct outcome.
Each majority assembled an elegant logical edifice while evading the question that the cases actually presented: what did the controlling words of the relevant enactments as understood by the people who passed them say about discrimination against the relevant group—homosexuals in the case of Title VII and transgender people in the case of the Fourteenth Amendment? The upshot is stark: Bostock misconstrued Title VII, and Skrmetti evaded addressing the meaning of the Fourteenth Amendment.
In both cases, Justice Samuel Alito showed the better ways, effectively confronting the meaning of the relevant enactment and determining whether it gave special protection to the class at issue. It is not enough for judges to be theoretical originalists in either statutory or constitutional interpretation. They need to put these theories correctly into practice.
And in conclusion:
… [B]oth majority opinions illuminate the peril of logic without history. Bostock enlarged a statute through syllogism and produced a result progressives loved; Skrmetti risked shielding a targeted ban through verbal finesse. Original public meaning creates a more stable law that follows the judgments of the enactors.
Of course, textualist analysis does not require us to deny that social norms can and do evolve. But forcing that evolution is emphatically not the role of the Court. Congress could amend Title VII explicitly to cover gender identity; Tennessee could revisit SB 1 in the light of accumulating medical data. What courts must not do is avoid grappling with the past, because the law is part of our past. When justices try, they sow confusion that harms the very movements they mean to aid. Bostock’s leap invites critics to accuse textualism of opportunism, and Skrmetti’s initial dodge invited critics to call the Court indifferent to equality.
The parties who cheered these opinions for partisan reasons may yet rue their logic. Progressives who applauded Bostock’s elasticity may confront it again when a deregulatory majority uses a literal meaning to narrow the scope of an environmental law even if the historical context shows that the understanding was broader. Conservatives who welcome Roberts’s relabeling in Skrmetti would be uneasy if a future Court used it to avoid addressing claims of discrimination against a religious group. What drives such logical constructs may ultimately be less legal rigor than the lure of convenience. Such shortcuts spare judges the archival labor of uncovering what mid-century legislators or Reconstruction-era citizens meant—and spare them, too, the discomfort of obeying values now out of vogue. But if interpretation is to recover the meaning of the law that governs us, it must begin where the text began, in the history that provides signs of the meaning the words still carry.
Posted at 6:05 AM