Strict Scrutiny - Living Textualism

Episode Date: March 14, 2022

Kate and Leah talk with Cary Franklin, the McDonald/Wright Chair of Law and Faculty Director of the Williams Institute at the UCLA School of Law, about her article "Living Textualism." The article is a broad critique of textualism, using the Supreme Court's 6-3 decision in Bostock v. Clayton County as a foundation. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our legs. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are delighted to be joined today by Professor Carrie Franklin to talk about her new article, Living Textualism. Carrie was until recently on the faculty of the University

of Texas Law School and this summer moved to UCLA, where she's the McDonald Wright Chair of Law and Faculty Director of the Williams Institute, which conducts important research on legal and policy questions related to sexual orientation and gender identity. So Carrie teaches and writes about constitutional law, anti-discrimination law, and legal history. She's written many excellent articles. I will just flag one, her 2010 article, The Anti-Stereotyping Principle in Constitutional Sex Discrimination Law, which is essential reading for anyone interested in sex, gender, and the law. So Carrie, welcome to Strict Scrutiny. It's great to have you. Thanks. It's fantastic to be here. So the piece that we are wanting to talk to you about today was written for the Supreme Court

Review, and it's about the court's 6-3 decision in Bostock v. Clayton County. Our listeners are probably familiar with it, but just to recap, that's a decision in which Justice Gorsuch wrote the opinion holding that Title VII's prohibition on sex discrimination encompassed discrimination on the basis of sexual orientation and gender identity. It's a great piece and a great broad critique of what goes by the label textualism on this court. That is whatever that thing is that Justice Gorsuch is burning for all the time. So maybe we can start by having you walk through what the court said it was doing in Bostock when it concluded that discrimination on the basis of sexual orientation or gender identity violated Title VII. Because part of what is so interesting about the piece is it goes through how Bostock was greeted as and treated as this triumph of textualism, you know, from so many different

quarters. So maybe we can just invite you to talk about, you know, what the court said it was doing in Bostock. Yes. And I couldn't be more excited to talk to the two of you because I know you are on top of the textualism question, and I'm very excited to spend some time focusing on it. So basically, in Bostock, the court said, if you look at the words of the statute, if you look at the words of Title VII, that leads you ineluctably to the conclusion that the sex provision covers discrimination on the basis of sexual orientation and gender identity. And the idea is, if Jennifer isn't allowed to date John, and Steve is not allowed to date John, then you've treated those employees differently on the basis of sex. Similarly, if you were labeled female at birth, and you're allowed to claim a female gender

identity and wear a dress, but somebody labeled male at birth is not allowed to claim a female gender identity and wear a dress, then that too is sex discrimination. We are not making any value judgments. We are not influenced by culture. We are opening a dictionary and reporting that that's what the conclusion is. Sounds like science to me. Exactly. It has a very scientistic feel to it and claims that that is all that it has done. So what is the gist of your critique? And we'll unpack all of this a little bit more, but just to give our listeners a preview. Okay. I will start by saying I believe the court reached the correct result in this case. I have been arguing for 10 years that sexual orientation and gender identity should count

as sex under Title VII. Many other people have also been making that argument. I firmly believe that the court reached the right result in the case. So my critique has to do with this idea that all you needed to do was open a dictionary and your conclusion lay before you just to be reported. And also more broadly, the critique goes to, you know, in a way, Justice Gorsuch writes a brief for textualism in this case, the idea that this is value neutral, the idea that judges can divine in an objective way, divorce from current social mores or cultural context or personal political judgment, the meaning of these broadly worded, highly contested legal provisions like Title VII. So I think there are numerous things wrong with this claim. I'll just start with one and we can work from there. So one is Justice Gorsuch says, if you look at the words of Title VII, it establishes a simple test. Are you treating one individual worse than another on the basis of sex?

And that is what's going on here. And so end of story. And it's just not true that Title VII sex provision has been interpreted in this strict anti-classificationist way or that this is such a simple test to apply and that you can apply that test in fact without any judgments. Can I interrupt you for a sec? Will you define anti-classification versus anti-subordination approaches to discrimination, sex discrimination, or discrimination broadly? Sure. So anti-classification says when you have an anti-discrimination provision, what it is saying is that you can't classify on the basis of the prohibited category.

So a great example to see the meaning of anti-classificationism would be the affirmative action cases. Jim Crow and affirmative action look the same under an anti-classificationist understanding, because in both you're classifying. And that's all that we're really asking. Is the government categorizing people on the basis of race? Done. You have discrimination. Anti-subordinationist takes on discrimination, say, classifications might be

discriminatory, but they're not inherently discriminatory. You have to look to see what work the classification is doing. And if it's doing subordination, if it's perpetuating the exclusion of historically excluded groups, that is discrimination. But something like affirmative action may not be be even though it classifies because it doesn't subordinate. So just as Gorsuch says, we have a simple, an anti-classificationist regime here that the dictionary tells us is operative in Title VII sex discrimination law. And I'll just give a couple of examples of why I think that is erroneous. So for instance, we have sex segregated sports teams. Title IX bars discrimination on the basis of sex.

It does not define segregated sports teams as discrimination on the basis of sex. In fact, if you desegregate your sports teams and women lose a lot of opportunities, that could be discrimination on the basis of sex. Every court that has considered the question of differentiated physical fitness standards, like the FBI requires women to do fewer pushups than men or run a mile in a slightly longer time than they allow men, and this gets challenged from time to time. And the courts say it's not sex discrimination, actually. A fourth circuit in a recent case said if you required men and women to do exactly the same number of pushups or run in exactly the same speed, that would be requiring women to be much more physically fit than men. So you're actually, say, looking at the 80 percentile

physical fitness level for each sex and allowing them to come in. You're treating them equally, even though you're treating them differently. The final example I'll just give is sex-segregated bathrooms. If let's put transgender people to the side for a second, the Bostock Court is not going to say the fact that we have sex-segregated bathrooms in every workplace in America violates Title VII. And often in those kinds of cases, it uses a kind of sex-neutralizing approach where it says everyone's actually being treated equally because everybody is just being required to go to the bathroom that corresponds with his or her sex, and that nobody's being treated worse than any other person. And that happened in a lot of the LGBT cases prior to Bostock. What happened in Bostock is that the court said,

we're not going to do that sex neutralizing move anymore. We think this is a kind of differentiation that's harmful and that violates the statute. We're not going to look at it like segregated bathrooms, like segregated sports teams, like these FBI differential treatments. And my article is trying to show that there's value judgment involved in putting that into the new category of differentiation that's not allowed

and that the dictionary didn't do that. Legal contestation, cultural change, and judgment did that. That's really illuminating. So you're talking about adverting to dictionaries and then selecting definitions in dictionaries. That is one example you give of this phenomenon that you term the use of shadow decision points. So these unarticulated choices that the court makes when engaging in this, you know, I don't know, are we gonna put scare quotes around textualism every time we say it? I kind of feel like we should. But when it engages in the kind of analysis that it does under the flag of textualism. So can you say a little bit more about

what you mean by these shadow decision points and what other examples beyond the use of a dictionary might be of shadow decision points? Great. So one of the key aims that the article has is to give a name to this phenomenon that people have noted, which is there are these purportedly neutral or many times even unacknowledged, but often outcome determinative choices courts are making that have a veneer of methodological feel to them, but I think are actually being determined by substantive judgments. So here are a few of the many, probably countless, shadow decision points that arise in textualist decisions. Okay, here's one that Victoria Nurse and Bill Eskridge often talk about. Which bits of statutory text are you subjecting to textualist analysis? They call this textual gerrymandering. Oftentimes, what words you choose to subject to the analysis is going to be outcome-determinative.

There's often no discussion of how you're choosing which segments. Whether to consult a dictionary or one of these new corpus linguistics databases that try to compile lots of publications from a particular period in time to show how a word is being used? Or do you consult both? Which dictionary do you use? Which database do you use? There's often multiple definitions in a dictionary. Which do you pick? How literally do you take the definition? Whether you deem the text ambiguous or not, this has a huge effect on the analysis. If it's deemed ambiguous, a textualist will often say other extra textual sources can come into the analysis. If it's not ambiguous, then you just stick with the text. That very frequently has an effect on the outcome. How strongly you weigh original expected applications in determining the meaning of the text. I could go on and on and on. I will give some specificity to this by just talking about the dictionary example that you brought up.

But one of the things the article does is try to go through a lot of these different shadow decision points, showing that the justices are shading, moving the opinion in a certain direction by each of these little choices. And then at the end, just say, the words brought us there. But actually, you can see the choices that they're making to get to where they want to go. I'll just talk about the dictionary for a second. So here's a weird thing. Justice Gorsuch uses a dictionary from 1954, and he looks up the words of Title VII that he chooses to look up, and he says, in this case, he says discrimination means differentiation. So you can't differentiate between men and women. That definition helps him reach the conclusion that he wants to reach. All dictionaries also include another definition of discrimination, which is the anti-subordinationist definition, the prejudice,

the bias, that you're subordinating someone, you're trying to hurt somebody, you're discriminating in a way that we often talk about it in a civil rights context. And why has Justice Gorsuch chosen this 1954 dictionary? Well, it turns out that that dictionary, it's sort of unusually for the period, lists the anti-classificationist definition first. So he says that's the definition and that helps him reach the conclusion that he wants to reach.

One thing that's interesting is there really are no rules about dictionary usage. It's unbelievably, it's a major shadow decision point. But scholars have argued that you ought to use a dictionary from a few years after the text was written, because that will record what people at the time that it was written thought. He uses a dictionary from 10 years prior to the passage of Title VII. And it's a period where there's a lot of pressure on the idea, the concept of discrimination.

And you might think there was some evolution and some change. Why does he use that? My theory is it's because it is one of those ones that goes with the anti-classificationist definition that he likes. You don't see any of that on the surface of the opinion. That's the kind of thing that you have to dig to see and that textualism obscures. And there are ways in which the opinion itself reveals some of the, let's say, extra textual considerations that are guiding the court's decisions at various shadow points. But also, I think one way of getting at your argument

would be just to pose to our listeners like the following hypothetical, which you go over in the beginning of the article, which is, if you presented those dictionary definitions to all of the judges who were deciding this issue in the late 1960s and early 1970s, would any of them have reached like the same conclusion that Justice Gorsuch did? Because as you know, people were presenting these claims. And at the time, no one found this textual analysis all that persuasive. Right. So the idea that what textualism is doing is discovering meanings that were always already there. And somehow after 50 years, we just saw it. It stretches the bounds of credibility.

And it's not hard to understand why we see it now. There has been a gay rights movement. There has been cultural change. There has been legal contestation that has changed the law dramatically in this area, particularly in the constitutional context, particularly in the military, particularly in the marriage cases. And it no longer seems consistent with the egalitarian purposes of Title VII to allow this kind of discrimination to happen. And that makes it a lot easier to fit this kind of discrimination into the words of the statue. But there's a real resistance to kind of acknowledging that because it starts to make the analysis look like a living or dynamic kind of a thing. And once you've conceded that, the mystique falls away. Yeah, it does.

I mean, but really, right, we should just be thinking that Justice Gorsuch is better at reading dictionaries than, you know, the 50 years of judges that came before him. I think that that's the other option we need to do the readings of like the greatest hits of Neil Gorsuch's textualism opinions. Maybe we should see if they also want to do like a side hustle reading our favorite parts of your article out loud. But just the original public meaning of Title VII sex provision, you write, is not something that justices discover. It is something they produce. And that's not a problem for you as I read it.

The problem is they don't admit it, right? So they tell us they are doing something entirely different, and that has real democratic implications. I guess I'd be curious to hear you talk a little bit about that, sort of what is lost through the kind of veil that the justices use when they sort of purport to do this kind of objective, scientistic, legalistic analysis, as opposed to saying, we're trying to discern values and, you know, read the law in the spirit of contemporary values, like in a dynamic way. So what is lost when the justices deny that?

What would be gained if they did something different? And what that something different ought to look like? I know that goes a little bit beyond the scope of your piece, but I'm curious to hear you talk about it. So one of the things I find absolutely the most galling about the claims being made in favor of textualism in Bostock and beyond is the idea that dynamic forms of statutory interpretation create democratic accountability and rule of law problems. So one thing that the piece is really trying to show is there are enormous democratic accountability problems created by this idea. You look in the dictionary and all of these difficult contested cases are solved. One of the selling points of textualism is that it

apparently enables a kind of democratic dialogue between the court and Congress, where the court signals to Congress how it's going to read a statute, and then Congress can respond accordingly. But when the court is not being fully forthright about the steps in its argument or how it's doing its interpretation, that discourse completely falls apart. I think confirmation hearings of judges are increasingly a time where judges speak to the American people about how they're deciding cases. And people vote to some extent, some people to some extent vote for candidates based on the kinds of judges that they think they will choose. But these judges are not telling us the actual bases for their decision and how they go about making them. And I think on the most

basic level, it relieves judges of this obligation to provide reasons. You can just say, I looked up a word in the dictionary and boom, you don't have to give one of the great things about obligations, responsibilities, and benefits of the judicial role, which is that you provide reason and explain your decisions to us. And if you look at the lower court decisions leading up to Bostock, the circuit court judges did that. Judge Katzman, Judge Wood, they did that in their opinions. They laid out a bunch of reasons. And then that's just gone from the Bostock opinion. And I think this creates significant rule of law problems. Because if you're telling us that for 50 years, we thought that sexual orientation and gender identity fell outside the scope of Title VII's sex provision,

but then we opened the dictionary and discovered that they fell within, what is the dictionary going to reveal next? It is not clear. Justice Alito ends his opinion with this parade of horribles that will, you know, if Justice Gorsuch's views are put into effect, this, this, and this will happen. But you know what? I don't know. Because Justice Gorsuch hasn't told us anything, really, that I looked it up and here's the answer. And that doesn't tell me what's going to happen with locker rooms, with bathrooms, with all the stuff that Justice Alito talks about. So I think it's very hard for litigants, for the American people, for employers, for employees to know what now is covered. absolutely galling that textuals get away with claiming that they are the ones who are democratically accountable and in service to the rule of law, because it is absolutely not true. So I'm glad you mentioned the locker rooms and restrooms, because I think that this is an example where the court alluded to something that is so obviously an extra textual or a textual

consideration, but that was shaping its opinion because part of how it arrives at the simple formula you alluded to, you know, discrimination because of sex means, you know, did Jane get something that John did not, is by an analogy to race discrimination. But, right, like if you think about, well, how would race discrimination play out in a separate locker room or a separate restroom situation, no one would think that it's permissible under Title VII or under Title VI for an employer or a school to adopt race-segregated restrooms or locker rooms. And yet, Justice Gorsuch's opinion acknowledges the possibility that sex-segreg segregated restrooms and locker rooms might be perfectly fine under Title VII. But if that's the case, it's got to be because of something other, what are some of the extra textual considerations that Justice Gorsuch is drawing from that he should have actually put in the opinion when he's saying, well, look, Title VII might differ when it comes to discrimination on the basis of race versus sex or when we actually confront the question of sex segregated restrooms or locker rooms.

Here are some of the things we'll consider. Yeah, so that's really interesting, because it's worth remembering that not so long ago, we segregated bathrooms by race and by sex. And today, we consider one of those things discriminatory, and the other thing non-discriminatory. And the only explanation doesn't come from looking up the word discrimination in the dictionary, but from importing cultural values and norms. And in fact, just as Alito alludes to some of these in opinion, he talks about, and I am not endorsing all of these, but he says, look, some women have been sexually abused, and they're going to feel threatened if there are men in a bathroom. And some people feel the need to have privacy from people of a different sex. It goes through a whole laundry list of clearly extra textual considerations that would come in in the

sex context that would not come in in the race context because we'd look at these things differently. And as I mentioned, I feel quite sure that the Supreme Court is not going to invalidate the segregation of bathrooms by sex in every workplace in America tomorrow. And it's going to have to adduce a bunch of considerations. And, you know, there's a lot of roots that it can take. One is to say there's no discrimination because everybody is being treated the same. You go to the bathroom that corresponds to your sex and that's just completely sex neutral. Sometimes courts say that. Or you say, okay, maybe it's discriminating on the basis of sex in a literal kind of way, but it's not treating anyone worse than another because there's no subordination going on here. Or you acknowledge

discrimination all the way, but then you say there are countervailing privacy concerns that override the, you know, court, you could take any of these, and I feel quite sure, I don't know exactly which one the court would seize on, but it would seize on one of them because of cultural judgments. And the court's failure to take responsibility for any of that, and just to say its hands are tied is quite problematic. And there's a lot I could say about the difference between their treatment of sex and race under Title VII. I guess I just wanted to pick up on one thing you just said, which is the level of confidence that you have in the prediction that this court is not going to invalidate sex-segregated restrooms or locker rooms in the United States tomorrow. And I think one common criticism of, let's say, non-textualist methods of statutory interpretation is that they are somehow indeterminate, amorphous, right, invite judges just to consider their own preferences. But when we saw, you know, the Court of Appeals judges you

were alluding to, like Judge Wood or Judge Katzman or Judge Moore, engaging in more explicitly democratic reasoning in these cases and noting the cultural, socio-legal changes that had happened that had made discrimination on the basis of sex include discrimination on the basis of sexual orientation and gender identity. It's not like they were saying, well, let's just throw it to a poll of the country. Let me think about what I would like the rule to be. Instead, it was a survey of, look, the Supreme Court has decided all of these cases,

be it Obergefell, Romer, Lawrence. There have been all of these cases establishing the meaning of sexual harassment that have built on the women know, the women's rights and sex equality movements. And those movements and those decisions and changes at the state and federal level have established a meaning of discrimination on the basis of sex that tells us that firing an employee because they are gay, lesbian, or transgender, or bisexual, that's discrimination. But telling someone to use one restroom versus another, again, setting aside issues of gender

identity, that's not discrimination on the basis of sex. And you can get there without just throwing up your hands and saying, like, I'm going to do what I would like to do. Yeah, I think that's very far from what Judge Katzman or Judge Moore or Judge Wood do. If their opinions read as extremely deferential to Supreme Court precedent, arguing that the legal meaning of these terms has evolved over time in a way directed by the court, in a way directed by democratic contestation that has gone through approval process, if you will, through many, many decades of judging. And that means that some of

the presuppositions and assumptions that were allowing court to carve out protections, to say that protections on the basis of gender identity and sexual orientation aren't going to count have been undermined and eroded. And I think Judge Wood says, you know, it's very strange to say that the correct interpretation is, you know, you can get married on Sunday, but fired on Monday. And that reading of the statute no longer makes sense in the legal world we inhabit. And it's not because I think that is because there's been decades of legal change that have made this kind of discrimination seem to us contrary to the egalitarian thrust of Title VII. to those lower court opinions. I remember during the argument in Bostock, the only lower court opinion, I think maybe Katzman's Zarda opinion got a little bit of play, but there was this fixation on Posner's concurrence in the Seventh Circuit opinion that Judge Wood wrote that you're talking about Hively versus Ivy Tech, because he went several steps further than the other court of

appeals judges and basically said, eh, we got to update Title VII. And just like, let's decide what it means without reference in this very careful way to Supreme Court precedents that do reflect this dialogue, contestation, these developments, political, legal, cultural, that then were reflected in these Supreme Court opinions like Ancale, like Pricewaterhouse, that do expand the meaning of sexual harassment and include sex stereotyping within sex discrimination. But he sort of says in a way that feels a little lawless, let's just decide what we think the best meaning today is without sort of this kind of careful reference to everything that such an interpretation sort of builds upon. But your point is that's a strawman alternative. And that's precisely why the

justices Alito and Gorsuch were so fixated on talking about Posner as if it was Posner or 17 dictionaries. But of course, your point is that's a false choice. Yeah, if I did not know better, I would think he was a textualist plant. That's the greatest gift to textualism you could ever have. Let's just in a freewheeling way say what we think. Right. That's not the alternative to textualism. But that's the caricatured Justice Gorsuch picture of the alternative to textualism. If you read Justice Gorsuch's book, it's Posner. He's arguing again. But that's not what's being done. Posner is an extreme outlier. And I'll say for a critic of textualism, which Posner purports to be,

wow, did you just give a great gift to the folks on the other side, to the anti-textualists? Because I think thatito accused Justice Gorsuch's opinion of being with respect to textualism. There is something to the theory, at least in the Hively concurrence, but I have to say to rehabilitateown of textualism prior to reading this article, Carrie, was Posner's book review, which is titled The Incoherence of Antonin Scalia and the New Republic in like 2012, which is fantastic and really is a very effective rejoinder to many of the precepts of textualism. This concurrence was effective. going to say something now in support of Judge Posner, and I actually quote him in my piece, because I think he makes a really astute point about the flag burning case and Justice Scalia and how we should under, he's not talking about Bostock, but it's actually very helpful in thinking about how we should think about Bostock. So here's the thing he says about the flag burning case. So Justice Scalia says in the flag burning case, you know, I hate flag burning. It's against every political bone in my body. It's against my policy views. But I am handcuffed by the text to say that the First Amendment gives this person or any person a right to burn a flag, right? And this becomes part of

Justice Scalia's stump speech for originalism and textualism. And his acolytes repeat it all the time. And you will, if you listen to Justice Scalia on originalism, textualism. And his acolytes repeat it all the time. And you will, if you listen to Justice Scalia on originalism, at some point, you will hear this flag burning thing to demonstrate how honest I am and how even when it goes contrary to my views, I have to obey the Constitution. And Judge Posner says something that I think is pretty smart, which he says, I don't view this situation as Justice Scalia going against his commitments. I think he traded a minor preference for a major preference. The minor preference was against flag burning, which ultimately he doesn't care that much about.

The major preference is winning the game for originalism. And this case really enables him to take a lot of steps forward along the path to justifying originalism, because now he can say, for now and all time, look at that one case where I went against my views and use it to actually implement his views in all the cases like Roe and other cases that he cares about. And already people were framing Bostock in that same way. This proves the legitimacy, the neutrality, the objectivity of textualism, because Justice Gorsuch, the conservative, trade-off in this case and that Justice Gorsuch feels toward LGBT people the way Justice Scalia felt toward that flag burner. He said he wanted to do violent and terrible things to the flag burner. There's no evidence that Justice Gorsuch has this animus

against gay people. The vast majority of Americans support anti-discrimination protections for gay and transgender people, and there's no reason to believe Gorsuch isn't among them. Including the majority of Republicans, I just want to add. This is not one of those issues that has the same partisan balance. So I don't think there's any reason to believe that he actually even did go against policy preferences in this case. But even if he has, it's certainly a case of trading minor preferences for major preferences, because his major preference, if you read Republic as we know it, his major preference, if you read a republic as we know it, right, his major preferences for textualism. And I guarantee you,

we will see this opinion being cited to justify conservative outcomes in textualist cases and say, but it's not ideology, culture, politics, it's, and see Bostock, we're going to see, it's going to be the new flag burning case. And I just think Posner is really smart about that. I mean, look, we already saw it when Justice Gorsuch joined that joke of an opinion by Justice Alito in California versus Texas, challenging the Affordable Care Act, in which they cited some legislative history on bills that were never passed as evidence of the meaning of statutes that were never enacted and used that to arrive at a ruling on statutory interpretation. People are like, OK, well, you can't think Justice Gorsuch is a hack because see Bostock.

And we saw this in the aftermath of Brnovich, you know, in which the court added a bunch of atextual factors to reduce the protections afforded by Section 2 of the Voting Rights Act and the rejoinder to, you know, these are just a bunch of conservative hacks was Butsy Bostock, in which Justice Gorsuch wrote this opinion, you know, interpreting Title VII. And it's like, that can't be, you know, the cover for all manner of sins. It's just that that can't be how this works. Yeah, I think it's a great point. It's completely intermittent and itinerant and inconsistent across a lot of cases. But I also just want to point out, I don't think it's the case that, you know,

one response from a textualist academic might be to say, okay, the judges are doing it wrong. Like they're messing it up. They're not, you know, they, they're not purists, but I, fair enough. That may be true, but I don't think it's possible to act. I don't think you can save textualism by saying that. I don't think it's possible to do this because I don't think these words are making these massive determinations. And I think there are all these shadow decision points. And I think, um, you know, it's just as susceptible to ideology, to precedent, to you know, it's just as susceptible to ideology, to precedent, to legal change, to cultural change as any of these other more admittedly dynamic methodologies. So I want to ask a question, which is that the court in Bostock

cited your 2012 article titled Inventing the Traditional Concept of Sex Discrimination a number of times, right, like two or three times. So two questions, I guess. And then I want to ask you to elaborate on something. So one question, which is, I'm curious what your reaction was to being cited in an opinion whose outcome is so clearly correct. And as you said at the outset, you so clearly support, but whose reasoning you find so misguided or disingenuous. So curious how you responded. And then I'd love to hear you talk through this amazing detail regarding the court's partial citation to an EEOC source that you cite in your article. It's like this tiny microcosm of the entire phenomenon that you were describing.

So will you talk through that? Sure. I guess I would say that sometimes the court cites scholars' work for propositions the scholars disagree with and scholars feel like their work was misused. I don't feel like that. I have been arguing for this for my whole career. I believe in this so strongly. Millions of people now have anti-discrimination protections, and I am so humbled and thrilled, and that's all wonderful. And also, it gave me this really interesting window onto textualism, which ended up leading me to write this whole piece, because I saw what Justice Gorsuch did. And it was a tricky little thing that no one would see, but I knew what he did to my quote. So I could see how he was

manipulating the words. And in this case, I am going to say manipulating because I will tell you what happened. So I found a quote from an EEOC commissioner in the mid-1960s. The sex provision gets passed and they're trying to figure out what it means. And the EEOC commissioner says this, the sex provision of Title VII is mysterious and difficult to understand and control. Obviously, he hadn't read a dictionary. Sorry. There you go. So he's finding it mysterious. He's finding it difficult to understand. I show in my piece that there is a lot of discussion at the time, right? If we're talking about original public meaning, the view at the time is that this is very ambiguous, that this is very hard to understand, that just saying discrimination

on the basis of sex really doesn't tell us all that much about what is covered. And in fact, the piece goes through and there's lots of things that were not deemed covered at the time that are today. And in fact, the National Organization for Women, the most important feminist organization in this period, was founded in order to, quote unquote, effect a public redefinition of Title VII sex provision. Like they call it a redefinition to cover things like pregnancy, sexual harassment, lots of things we would today consider covered, but that weren't at the time. And they want to redefine the people's understanding. I think that happened. But anyway, to get back to this EEOC commissionery, my point is there's a lot of ambiguity at the period. You can't just, you

certainly cannot just open a dictionary and get all the answers. So this EEOC commissioner says it's mysterious and difficult to understand and control. Justice Gorsuch quotes that EEOC commissioner from my article, but he does it a little ellipsis. He says he takes out the mysterious and difficult to understand phrase. And he puts an ellipsis there. And he just says Title VII is difficult to control. And so then that supports his argument that, you know, sex meant what it meant. And it has this broad implication and it always did he literally takes out the guy saying it's ambiguous and none of us understand what it means because sex is unclear and it's kind of like a Rorschach blot and he just he just takes that out and that's the kind of thing that

you don't know uh unless you know that quote very well and um there you go. This is what textualists do with words, right? It's science. They're clearly making these moves all the time. And it is so gratifying to see you just like have them so dead to rights on this one. So maybe we can ask about the title of the piece, Living Textualism, which both describes the world of the 6-3 chord in which we find ourselves, you know, textualist, and also might sound like a reference to or play on a book by Professor Jack Balkin, Living Originalism. But you mean something different by this, as you explain. So what does the title refer to? Yeah, so Living Originalism is Jack Balkin's way of saying, I'm an originalist, but I'm kind of melding living constitutionalism and originalism and coming up with a way that I can kind of textualist. I'm not trying to develop or reaffirm textualism. What I'm trying to point out with my title is that textualism is a form

of dynamic statutory interpretation. Textualism is a form of living constitutionalism, of living interpretation. It enfolds precedent, legal precedent, it enfolds change that comes through legal contestation and cultural movement. It just does that in a way where all of that gets obscured, right? It happens just as much as it does in people who are forthrightly engaged in dynamic statutory interpretation. So in a way, I'm saying all textualism is living textualism. There's not, you know, this idea, Joseph Scalia always used to say, I like my constitution, dead, dead, dead, right? No, the words are not dead. They move. And you can either be honest about that, or we can obscure, we can even give the reasons for our opinions, or we can say the dictionary just provided them. And my preference would be for

the more honest approach that admits dynamism and tries to give reasons rather than one that obscures it. So maybe one final serious question, which is this, who do you think we should cast for a running segment in which we read Neil Gorsuch's most ridiculous pans to textualism aloud. Right now, our leading candidate is Regé-Jean Page, but he hasn't so much responded to our tweets or instant messages. So we are open to other suggestions. Okay, I do have a suggestion. I am not standing in the way of you and Reggie Jones. So let's hope that happens. But if you ever do a live show, have you seen that, that gif or jif of Catherine Han doing that major knowing wink? Oh, yeah, at the camera. Okay, if you have

a live show, let her read these things and then do a big fat wink at the end. I would love this. Only the written word is law. So I'm so glad you said that one because I use that image after reports of Justice Barrett's speech at which she proclaimed that the Supreme Court's work was not influenced by politics after being introduced by Mitch McConnell. So I included the Han winking face. So I like this one. So I am not going to even attempt to channel either Rege Jean or Catherine Han, but I actually do want to read the last couple of sentences of your article, Carrie, if everybody will indulge me. So here's how the article ends. Tactualism promises that arguments involving matters of deep moral and political significance to the American people can be transformed into and resolved through value-free arguments over technical, methodological questions.

But that is not possible, and pretending otherwise is not democracy-enhancing. In fact, it is the big lie in the judicial realm for the coming generation, that judicial elites trained in the practice of textualism and originalism can unlock the one true and eternal meaning of our deepest legal commitments unburdened by history, politics, social change, and the substantive constitutional visions that so profoundly influence how we all understand those commitments. It's just really a mic drop moment, Carrie. I feel like we've been trying to make our way around some version of these points in dissecting the textualist decisions of this court over the last year, two, three, and you did it much better than we ever have. So thank you so much for the piece and for coming on.

It was so great to talk to you. I want to make a free suggestion to Justice Sotomayor. I think in the future, she should start doing what Justice Scalia did for legislative history to all of Justice Gorsuch's like owes to textualism, where she says like, I join all of the portions of the opinion, except for the line that says, like, I join all of the portions of the opinion except for the line that says,

words are how the law constrains power. And then she just drops a footnote to Carrie's article. Like, I'm just putting it out there, Sonia, if you're listening. Totally. Brilliant suggestion. Thank you so much for coming on the show, Carrie. Thank you so much for having me. This is so much fun. And thanks for all that you do. You guys are awesome. Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Lippman,

Melissa Murray, and Kate Shaw. Produced and edited by Melody Rowell. Audio engineering by Kyle Seglin. Production support from Michael Martinez, Sandy Gerard, and Ari Schwartz, with digital support from Amelia Montooth.