Podcast
Strict Scrutiny
This article was a broad critique of textualism using the Supreme Court's decision in Bostock v. Clayton County as a foundation. The author argued that textualism is actually a form of dynamic statutory interpretation, which obscures substantive judgments through purportedly neutral methodological choices.
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.
— Episode: Living Textualism
Episode: Living Textualism
This article was a broad critique of textualism using the Supreme Court's decision in Bostock v. Clayton County as a foundation. The author argued that textualism is actually a form of dynamic statutory interpretation, which obscures substantive judgments through purportedly neutral methodological choices.
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 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.
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.
Textualism 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 values.