The Betrayal of Originalism in BOSTOCK v. CLAYTON COUNTY?
Last month, Justice Gorsuch held that the 1964 Civil Rights Act extends employment protection to gay and transgender folks, because that's what the law says even if it's not what anyone who wrote it meant to do. Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731 (2020).
That scared some conservatives, who feared their favorite legal weapon ("originalism") had been turned against them. In legal arguments, the gold standard is an idea that seems neutral but consistently yields the results you favor. Originalism had seemed like that idea to conservatives. Now they're not so sure, and some folks are panicking.
This was all thoroughly predictable and has been a long time coming. Some quick history.
In 1967, Roland Barthes argued in 'Death of the Author' that we should abandon reading as a search for the author's intended meaning and embrace reading as a journey to create our own meaning, no matter what the author intended. That idea sparked a revolution in literary theory and undergirds most of the deconstructionist, postmodern, and postcolonialist philosophies now in vogue in literary theory land.
In 1986, Ronald Dworkin wrote 'Law's Empire,' which imported many of those concepts from literary theory into legal theory.
But legal theory had different needs. Whereas it didn't matter for a novel to have multiple meanings, judges needed to decide cases. One meaning must win and all others must lose. If author's intent no longer controls, that leaves a power vacuum. What replaces it?
Dworkin said the modern judge should shape their own meaning, guided by moral norms like justice and integrity. His framework largely undergirds living constitutionalism.
The late Justice Antonin Scalia offered an alternative answer: public meaning originalism. He accepted the death of the author and that first step away from author's intent. What the legislators / Founding Fathers intended to say was legally irrelevant to him. But whereas Dworkin parted ways entirely with the old original intent idea, Scalia blended it with the new death-of-the-author concept to create a hybrid: public meaning originalism. Under this theory, the one right meaning for a legal text is what the public would generally have understood it to mean when it was written, regardless of: (1) what the author intended for it to mean, and (2) moral norms.
The removal of those two backstops meant you would sometimes get surprises. But public meaning originalism absorbed the powerful death-of-the-author idea and put it to work churning out mostly conservative results again. The odd surprise result here or there was a necessary sacrifice for the greater good of bending death-of-the-author to the conservative purpose, and blunting what could have been an annihilation event for conservative legal thought.
Fast forward to today. Many conservatives have forgotten that history, and are shocked and dismayed to see the odd surprise result pop out of public meaning originalism, as it did last week. That is a feature--not a bug--designed to build the theory's legitimacy and to stave off a greater tilt toward progressive values.
In short, conservatives forgot they'd won the contest, and were dismayed to see the other side's consolation prize.