At the ACS Expert Forum, Ryan Nees (Stanford J.D. '21): A New Textualist Argument in the Title VII Cases, and the Risks of Corpus Linguistics. From the introduction:
The Title VII cases pending before the Supreme Court are a notable test for conservative proponents of textualism, …
[L]ast week James C. Phillips sought to recast the textual evidence with a subtly modified claim relying on corpus linguistics. For a textualist like Justice Gorsuch, who may be attracted to petitioners’ analysis but concerned about the outcome that would result, Phillips’s intervention could provide important new textual evidence.
Phillips’s intriguing argument is worth carefully considering, and is an instructive application of the larger project urging judges to make greater use of corpus linguistics to derive contemporaneous meaning. He argues, in summary, that the petitioners’ textualist reading depends upon “separately analyzing and then amalgamating . . . three parts” – namely, the words “discriminate,” “against,” and “sex.” Analyzed in that way, the LGBTQ petitioners may have a point, and Justice Gorsuch seemed to acknowledge as much at oral argument. The better approach, Phillips says, would be to assess the distinct meaning of the phrase “discriminate against,” which has its own highly specific connotation entailing prejudice as a motivation, especially when the phrase is paired with a suspect class.
Corpus linguistics could be a useful resource to identify idiomatic meaning of this sort. But the surprising consequence is that, the more idiomatic the meaning uncovered, the more purposivist the reasoning starts to appear. And for reasons I explain, Phillips’s analysis is unpersuasive on its own terms, relying on a limited linguistic corpus while overlooking any possible legalistic meaning that prevailed at the time. It seeks to create a new term of art even as textualists have traditionally disfavored doing so. As the corpus-linguistic method rises in popularity as a tool of statutory interpretation, the Title VII case study demonstrates its risks.
And in conclusion:
Phillips’s argument demonstrates how frustrating it can be for some textualists to deny themselves purposivist evidence: it tempts them to find particular forms of intent in words themselves, because it generally can’t be considered at the level of an overall statutory scheme. At the very least, if textualist judges are to accept corpus linguistics evidence of meaning, as Phillips has elsewhere urged should be prominently integrated into originalist methodology and textualist statutory interpretation, they should demand clearer and better evidence than that which exists in the Title VII cases.
Posted at 6:05 AM