Yesterday, the Supreme Court found in a 6-3 decision that employees cannot be terminated because they are gay or transgender. The full decision is here, and everyone is encouraged to read it.
I will now recognize that based on my experience, the vast majority of people did not click that link. Some read the decision shortly after hearing about it. Others are used to parceling their time in such a way that when highly-discussed topics are brought forth they scan through opinions of people they trust and select salient facts, and from those facts they shape their opinions. Others have their opinions set prior to any new developments and new facts are to be ignored.
This underscores the problem with textualism as a judicial philosophy. It requires study and consideration if it is to be accurately applied. The rationale for original decisions must be considered in each relevant case and then those rationale must be used to guide an eventual ruling. It does not allow for personal views to overrule logic, which is the reason it has been historically embraces by conservatives. It is, when properly applied, consistent and methodical – the only significant reason for variations on rulings are the choices as to what associative rulings a jurist finds relevant and their understanding of a prior ruling.
A good jurist is of the first group of people referenced in the paragraph above. They don’t develop their opinion independent of the exact legal phrasing, they use the words of the decision. As decisions tend to be heavy on specifics and explanations, deviations from original intent are rarely going to be significant.
It is with a textualist approach that Gorsuch explained why the Supreme Court decision… and his effort was so structured that the dissent of Justice Alito specifically recognized it and condemned it.
“The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society “
Alito, here, is disingenuous. He is conflating judicial philosophy with personal viewpoint. It is true that Scalia did not favor “updating” statutes, but that is not what is happening here. Rather, what was done was an analysis of how the statute had been regularly applied and how consistency could be maintained in legal findings and interpretations.
Alito is attacking the basic philosophy of textualism, which has for more than two decades been held up as a superior judicial philosophy by Republicans and conservatives, because its application runs counter to the decision he wanted. He is getting full-throated support from many Republicans on that point, signalling yet another whipsaw reversal from a stance many claimed was a firmly held personal belief.
In truth, the danger of textualism – that it allows for very little interpretation on the part of a jurist – has been a reason that many Republicans judges and Justices do not fully embrace it. Their views are that sometimes a little “judicial activism” is a good thing. While I may not agree with that view, I recognize it has been a dominant stance even among Republicans for much of the country’s history.
This sort of decision illustrates why. More, it shows the value of reading things and considering them before simply echoing a leader or gleaning key bits of information from a group. Millions of Americans thought they were textualists until yesterday’s ruling. Suddenly they are outraged at the very philosophy they swear they support, and they are unaware of their own irrationality and ignorance.