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Thursday, September 10, 2020

Bostock, Cline, and the SCOTUS's Repression of Textualism's Unresolvable Contradictions

This week in “Legislation and the Regulatory State,” I taught General Dynamics Land Systems, Inc. v. Cline and Bostock v. Clayton County. Reading these two opinions together reveals a truly weird omission in Bostock: Neither the majority nor dissenting opinions in Bostock cite or discuss Cline. This is such an extraordinary omission that it cannot be an accident. It is, instead, most likely the jurisprudential version of Freudian repression: Cline is the earlier traumatic precedent that exposes painful contradictions at the heart of textualism, so it is conveniently ignored for the sake of preserving the illusion, believed by some to be necessary for the “rule of law,” that “plain” text somehow can be construed without attributing to it some statutory purpose.

Consider, first, how Justice Souter’s majority opinion in Cline seems to provide near-perfect support for Justice Kavanaugh's argument in his Bostock dissent that the narrow ordinary understanding of "discriminate...because of sex" trumps the phrase's broad literal meaning. Cline held that "discriminat[ion]...because of...age" in ADEA did not include General Dynamics' discriminating against Dennis Cline in favor of older workers, because the ADEA did not cover discrimination that favored older over younger workers. Cline reached this conclusion despite the fact that, "[i]n the abstract, the phrase is open to an argument for a broader construction, since reference to 'age' carries no express modifier and the word could be read to look two ways." The literal meaning of "age," however, did not govern, because that broad reading "does not...square with the natural reading of the whole provision prohibiting discrimination." According to the Cline majority,"Congress used the phrase 'discriminat[ion] … because of [an] individual’s age' the same way that ordinary people in common usage might speak of age discrimination any day of the week," because the "commonplace conception of American society in recent decades is its character as a 'youth culture,' and in a world where younger is better, talk about discrimination because of age is naturally understood to refer to discrimination against the older." Because "we are not asking an abstract question about the meaning of 'age'" but instead "seeking the meaning of the whole phrase 'discriminate … because of such individual’s age,'" Cline looked to the "social history" of that phrase, which "emphatically reveals an understanding of age discrimination as aimed against the old."

Cline’s reasoning is obviously helpful to Justice Kavanaugh’s claim that "discriminat[ion] ... because of...sex" does not include discrimination based on sexual orientation, because ordinary people do not understand the latter to be an instance of the former. So why would Justice Kavanaugh ignore Cline? The most obvious hypothesis: Justice Thomas‘ dissent in Cline suggested to Justice Kavanaugh that Cline represents a sort of "Textualism Lite" that good textualists must not endorse. After the jump, an argument that Cline does indeed suggest the incoherence of drawing a sharp line between context-based "social usage" of a whole statutory phrase and a statute's overall purpose. That incoherence suggests that Bostock's majority opinion would have been more persuasive if it had not repressed all memory of Cline but instead pondered more deeply the purpose of Title VII separate from the word games that feature so prominently in Justice Gorsuch’s majority opinion.


1. Why Gorsuch's textual literalism in Bostock seems inconsistent with Cline

Start, first, with the tension between Cline's easy-going contextualism and Bostock's literalism. Bostock rests on the idea that every distinction based on sexual orientation entails ipso facto a distinction based on sex, because "sexual orientation" is determining whether or not the employee's sex is the same as or different from the object of the employee's desire. As Bostock puts it, “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” But for Gerald Bostock's being male, his romantic orientation towards other men would not indicate a gay orientation.

This "literalist approach" (to use Justice Kavanaugh's phrase) seems starkly at odds with Cline, which rejected the same sort of literalism with respect to "discriminat[ion] because of ...age" in the ADEA. Every instance of an employer's favoring older over younger workers automatically constitutes an age-based distinction if one considers “age” as an abstract category. Cline, however, held that favoritism for older workers was not the kind of age-based distinction that ADEA meant to proscribe, because, when confronted with references to "discrimination because of age," ordinary English speakers infer an implicit "old" before "age." This reading of "discrimination because of age" to mean “discrimination because of old age" is, according to Cline, just as much a "natural reading" as is inferring that "gray with age" or "bent with age" means being afflicted with "old age," not "age" in general. The proximate words — “discriminate,” “gray,” “bent,” etc. — all naturally lead the listener's or reader's mind to the state of being elderly.

Cline, in other words, adopts what James Phillips has called the "principle of compositionality”: The meaning of phrases are more than the sums of their parts, and that meaning turns on how ordinary speakers would understand the entire phrase.

Put to one side, for just a moment, whether or not Justice Souter correctly applied this principle in Cline. (FWIW my class voted 17-14 this year in favor of Justice Thomas' reading). Even if misapplied in Cline, that principle seems to support Justice Kavanaugh’s dissent, not Justice Gorsuch’s majority opinion in Bostock. As Justice Kavanaugh noted, "[i]n common parlance, Bostock and Zarda were fired because they were gay, not because they were men," even though, but for their being men, they would not have been fired for being gay. (Again, my quick poll of my students suggests that Kavanaugh is correct: The overwhelming majority would not describe what was inflicted on Gerald Bostock as discrimination against him because he is a man). The Bostock majority tries to side-step Kavanaugh's argument from common usage by noting that both sex and sexual orientation could equally be but-for causes of an employment decision. True enough -- but if no ordinary speaker of English would describe Gerald Bostock's being fired for being gay as discrimination because of Bostock's being male, then Cline's logic suggests that that discrimination does not fall within Title VII, even if male-ness is a but-for cause of Bostock’s being fired. Put another way, Bostock’s firing might indeed require employers to draw distinctions based on sex, but that firing might also not be the sort of thing that ordinary speakers of English would naturally describe with the whole phrase, "discrimination because of sex."

2. How Cline rejects lexical priority of purposeless semantics over statutory purpose

So why did Kavanaugh not cite and discuss Cline? One reason might be that Cline undercuts the entire textualist project of refusing to examine statutory purposes if the semantic meaning of a phrase, considered without respect to such purposes, is "plain." The implicit premise of this project is that the semantic meaning of a phrase (what the phrase means) can be distinguished from, and should be lexically prior to, the pragmatic function played by that phrase (the purposes that the phrase was intended to accomplish). The extreme version of this view would exclude any consideration of a statute's enacted findings, preamble, and title -- all indications of what Congress intended to accomplish by enacting the statute -- if the words of the command within the statute were deemed to be "plain" without any consideration of such evidence of statutory purpose. For an example of this extreme version of the textualist's "plain statement rule," consider Justice Kagan's dissent in Yates v. United States, 574 U.S. 528, 559 (2015), in which she complains that the majority "relied on a title to override the law’s clear terms" instead of following “'the wise rule that the title of a statute and the heading of a section cannot limit the plain meaning of the text.'"

Textualists' primary justification for this "wise rule" has been that statutes have multiple and even conflicting purposes the vector of which is best captured by the details of grammar and diction in a specific statutory command. Judges who modify the result yielded by such grammatical technicalities to accommodate the judge's view of statutory purpose will likely slight those other purposes that contract or expand the statute for the sake of what the judge takes to be the statute's "main" goal. Better, then, for judges (somehow) to blind themselves to the purposes that statute seeks to achieve whenever grammar and diction, considered in isolation from such purpose, yields some definitive result. This approach to read statutes might be "mindless" (to use Steve Smith's phrase), but selective mindlessness might improve decision-making by preventing judges from distorting the finely calibrated balance of purposes written into the details of text. (My colleague Adam Samaha has an insightful analysis of whether and how lexically privileging text over purpose could be justified. Short summary: It ain't easy).

Whatever the merits of the textualists' giving lexical priority to semantics over statutory purpose,Cline explodes the practice by making popular perception of a phrase's purpose part of phrase's meaning. According to Cline, “talk about discrimination because of age is naturally understood to refer to discrimination against the older," because the "commonplace conception of American society...as a 'youth culture.'" "[I]n a world where younger is better," the Cline majority concluded, "talk about discrimination because of age is naturally understood to refer to discrimination against the older." The obvious implied premise of this logic is that ordinary people read "discrimination because of age" to mean "discrimination because of old age," because old-age discrimination is the mischief that ordinary people want to fix. Small wonder, then, that Thomas dissented on the ground that the majority had elevated ADEA's primary purpose" over the ADEA's "plain" text in violation of textual purism: Cline does indeed seem to reject that textualist dogma.

And, perhaps for the same reason, it should be small wonder that Justice Kavanaugh ignored Cline. Justice Kavanaugh's "ordinary language" dissent purported to stay within the conventional textualism championed by Justice Scalia ("As Justice Scalia explained, 'the good textualist is not a literalist,'" Kavanaugh intones). Cline pulled at the loosest thread in the textualist system--the idea that an interpretation produced by parsing commas and last antecedents the textual clarity of which SCOTUS justices disagree should preclude consideration of statutory purpose because such grammatical hair-splitting is deemed to be the statute's lexically prior "plain" meaning. By smuggling statutory purpose into the evidence of linguistic usage that takes priority over "extra-textual" sources in the textualist hierarchy, Cline makes nonsense out of this system.

3. Should statutory purpose trumps literal text in the ordinary usage of statutory phrases?

Repression, however, is not adaptive, as any good psychiatrist will tell you. Just because you ignore Cline's challenge to conventional textualism does not mean that the challenge will go away. Once one concedes that the common usage of phrases, not the literal meaning of words, should determine statutory meaning, it is really difficult to relegate statutory purpose to a secondary disambiguating role. It also makes zero sense to refuse to consult a statute's title, findings, or enacted purposes unless the semantics of a particular sentence are deemed to be ambiguous.

Statutory phrases like "chemical weapon" (construed in Bond v. United States) or "any air pollutant" (phrase at issue in Utility Air Regulatory Group v. EPA) are literally capacious terms. They tend to reach far beyond what anyone would dream is an intelligible goal of the statutes in which they occur. Construed according to ordinary understanding, however, their scope shrinks dramatically in light of the purpose of the statutory scheme. Since FDA v. Brown & Williamson, the SCOTUS has routinely trimmed back on literal language to make room for such common sense. Yes, literally speaking, every office building that emits more than 100 tons of CO₂ is a "major stationary source" that emits "any air pollutant" under Title V of the Clean Air Act. SCOTUS, however, tempered literalism with common sense, finding that "it would be patently unreasonable-—not to say outrageous—-for EPA to insist on seizing expansive power that it admits the statute is not designed to grant."

One might try to fit decisions like Bond and Utility Air Regulatory Group into the textualists' procrustean bed by arguing that the contested statutory terms were "ambiguous." Those terms, however, were literally plain. They only became ambiguous once one contemplated the practical consequences of taking them literally. Textualists proclaim that such purpose-based trimming back on statutory language is impermissible, but SCOTUS has plainly rejected this sort of "Fiat ad litteram, et pereat mundus."

In so doing, SCOTUS has rejected not only bad policy but also bad linguistics. As I have noted in an earlier post, Will Baude and Ryan Doerfler in one article, and Richard Re in another, have both argued that it seems illogical to exclude consideration of statutory purpose just because the semantics of text, divorced from purpose, seem "plain." If statutory purpose is relevant to resolving an ambiguity, then it is equally relevant for determining whether or not an ambiguity exists in the first place. (Ryan Doerfler has further explained that this separation of semantics from pragmatics is simply bad linguistic philosophy).

Cline backs up Baude, Doerfler, and Re insofar as Cline holds that statutory purpose is part of how ordinary people read phrases like "discrimination because of age." More generally, if literal meaning leads to an outcome plainly at odds with the point of the statute, then that's reason to question whether literal usage really is common usage -- and to bring in statutory purpose to come up with a more sensible reading of the literal words.

4. Can Bostock’s result be justified by Title VII’s purposes?

Suppose that one were to re-write Bostock to take into account the social understanding of what Title VII’s prohibition on “discrimination because of sex” was imagined by most people to accomplish and not merely say. Could one justify the outcome despite the widespread prejudice against LGBTQ people in 1964? Or does Bostock necessarily rest on what Steven Smith calls (rightly in my view) "mindless" literalism?

The easy purpose-based answer is that, since 1964, the doctrine has expanded Title VII's coverage in such a way as to make it ludicrous to exclude anti-gay discrimination from the scope of Title VII's prohibition. It is now well-settled that an employer cannot discriminate against male employees because they are "effeminate" or female employees because they are too "masculine." As the SCOTUS declared in Price Waterhouse v. Hopkins, "[a]s for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for,"'[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.'"

These post-enactment developments have made anti-gay bias in the workplace absurd. There is a deep senselessness to prohibiting an employer from firing a woman like Ann Hopkins because she is too "masculine" but allowing that employer to fire her because she is a lesbian. Likewise, it seems beyond silly to say that a boss may not fire a woman because she will not have sex with him but may fire her because she has sex with another woman. If the former is "discrimination because of sex," then surely the latter is as well.

Randy Barnett and Josh Blackman have criticized this reliance on post-enactment precedent as inconsistent with purists' brand of textualism. Maybe so, but then so much the worst for full-throttle textualism: If textualism requires courts to draw distinction between employers who fire workers who violate sex norms by (say) speaking too loudly and workers who violate sex norms by dating people of the wrong sex, then, to quote Mr. Bumble, "the law is a ass -- a idiot." Both sorts of criteria are based on sex stereotypes that are sex-neutral in one sense but obviously sexist in another sense.

Is it acceptable to rely on post-enactment precedents to figure out the meaning of a statutory phrase? Why not, if the point (to quote Scalia) is "to make sense rather, than nonsense, out of the corpus juris." Those post-enactment precedents define the ordinary usage of Title VII's terms today: They are just as legitimate a source of meaning as all of the post-enactment statutes like the Violence Against Women Act Title III of which Justice Kavanaugh cited in his Bostock dissent to show that "sex" did not include "sexual orientation." They also reflect popular usage of the term "discriminate because of sex."

There is, in short, an easy way to reach the result in Bostock without the textual literalism that the Court has repeatedly rejected from Cline to Bond. Such an argument, however, requires one to throw the towel in on "plain meaning" rhetoric with which the SCOTUS has been garnishing its opinions since the early 1990s. I guess such window-dressing is fine if it provides psychological comfort to justices fearful of abandoning the "rule of law." But we should recognize such rhetoric as jurisprudential repression to be diagnosed, not analyzed: It did not drive outcomes in Cline, and it won't determine outcomes in any other case where the "literal" text departs from common usage that, in turns depends on practical purpose.

Posted by Rick Hills on September 10, 2020 at 08:15 PM | Permalink

Comments

Neal Goldfarb writes:

Because of the use of the word “any” in the provision construed in Yates, “it was appropriate for the Court to look to the perceived purpose of the statute in order to determine the domain over which the quantifier should be understood to operate.” “Any” is often a modal term with an implied modifier that must be inferred from context.

First, thanks for the posts, Neal. I often refer my Leg-Reg students to LAWnLinguistics for linguistic lore (in particular, with respect to Lockhart and the so-called “series qualifier” rule).

Second, I have no beef with Yates, and, if there are clever ways to characterize its methods of consulting statutory context as “textualist,” well—great! All the better for persuading self-styled textualist judges to write better opinions.

I would suggest only that the canons and meta-canons necessary to get textualist’s partition of semantics from purpose to work are a game not worth the candle. You say that “any” provides an excuse to consult general statutory context, because that’s how people use the word. I say that a statute provides an excuse to consult general statutory context, because that’s how ordinary language users use statutes. I get the sense that people who call themselves textualists dig in their heels, accepting dozens of little rules like your canon regarding “any” but resisting my general call always to test what looks like “literal” meaning against statutory purpose. I don’t see the margin in that resistance: Why not *always* check our linguistic intuitions against our best guess as to the aims of the statute?

One of the problems with trying to herd hundreds of cat-like judges into consulting this plethora of complex linguistic rules is that those judges simply are not very good at it. Yes, amicus briefs from folks like you (and Professor Jennifer Mascott And others) could help them — but the very reasons that make them unable to juggle dozens of rules on linguistics will make them incapable of adjudicating dueling linguistic experts. Judges are appointed because they have a reputation generally for being sharp, they helped out with a President’s campaign, and maybe they golfed with a Senator or two. Having them assess the finer points of linguistics is like having a pig judge a bacon-tasting contest: They know how to use language — some like Justices Kagan and Kavanaugh are IMO really good at it — but not how to assess scientifically and empirically how language is generally used.

So I prefer the simple path of generally allowing purpose to be used to test whether or not claimed clarity really is all that clear. That is, of course, just a fighting stance, not an argument. But now you know where I stand.

Posted by: Rick Hills | Sep 12, 2020 8:19:56 AM

Here’s the URL for the paper I tried unsuccessfully to link to in the second paragraph of my previous post: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3631374

Posted by: Neal Goldfarb | Sep 12, 2020 12:40:02 AM

Here’s the URL for the paper I tried unsuccessfully to link to in the second paragraph of my previous post: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3631374

Posted by: Neal Goldfarb | Sep 12, 2020 12:40:00 AM

Regarding Yates: The decision deserves more respect from the POV of textualism than it is generally given. I say that for two reasons.

First, in phrases of the type “any X,” the quantifier (“any”) is often subject to what’s referred to as an implied quantifier domain restriction,” whereby the quantifier is understood to operate over some contextually relevant domain. This is a point that Justice Breyer has made repeatedly (without the technical terminology), and he’s right. Therefore, it was appropriate for the Court to look to the perceived purpose of the statute in order to determine the domain over which the quantifier should be understood to operate.

Second, as I discuss here, the linguistic facts regarding “object” are more complicated than has been recognized. Specifically, corpus evidence provides grounds for concluding that fish and other animate entities are not generally regarded as objects.

Posted by: Neal Goldfarb | Sep 12, 2020 12:37:56 AM

Regarding Yates: The decision deserves more respect from the POV of textualism than it is generally given. I say that for two reasons.

First, in phrases of the type “any X,” the quantifier (“any”) is often subject to what’s referred to as an implied quantifier domain restriction,” whereby the quantifier is understood to operate over some contextually relevant domain. This is a point that Justice Breyer has made repeatedly (without the technical terminology), and he’s right. Therefore, it was appropriate for the Court to look to the perceived purpose of the statute in order to determine the domain over which the quantifier should be understood to operate.

Second, as I discuss here, the linguistic facts regarding “object” are more complicated than has been recognized. Specifically, corpus evidence provides grounds for concluding that fish and other animate entities are not generally regarded as objects.

Posted by: Neal Goldfarb | Sep 12, 2020 12:37:54 AM

This is unrelated to the overall point of the post, but I want to note that James Phillips is mistaken in his use of the term “compositionality” to describe the phenomenon in which the meaning of a phrase is different from the meanings of its parts as understood in light of how they are syntactically combined. The phenomenon he’s referring to is actually known as “idiomaticity.”

I’m pointing this out because Phillips’s error, if left uncorrected, is likely to breed confusion.

Posted by: Neal Goldfarb | Sep 12, 2020 12:12:52 AM

This is unrelated to the overall point of the post, but I want to note that James Phillips is mistaken in his use of the term “compositionality” to describe the phenomenon in which the meaning of a phrase is different from the meanings of its parts as understood in light of how they are syntactically combined. The phenomenon he’s referring to is actually known as “idiomaticity.”

I’m pointing this out because Phillips’s error, if left uncorrected, is likely to breed confusion.

Posted by: Neal Goldfarb | Sep 12, 2020 12:12:50 AM

Interesting, and as well important, those issues raised here. Many complications. Just worth to note:

Common meaning, is really irrelevant most of the time. This is because, the legal meaning ( in the plain meaning it bears) is detached from it typically (from the common meaning). Sometimes indeed, the same word as "age" can vary in its meaning, within the statute itself. I quote ( General Dynamics, from the syllabus):

"Second, the argument for uniform usage ignores the cardinal rule that statutory language must be read in context since a phrase gathers meaning from the words around it."

And further:

"As context shows that "age" means one thing in § 623(a)(1) and another in §623(f), so it also demonstrates that the presumption of uniformity cannot sensibly operate here."

So, without dealing further, why all this happens, it is worth to note, that the objective purpose, beyond subjective purpose of the Congress ( intent of the Congress in certain statute) solves the problem in fact. Like:

The issue of firing gays. When one shift to the objective purpose, problem can be solved. How? simple:

You can't fire a person, because of personal traits or issues. But, concretely, because of malfunctioning in the job, or misconduct or whatever. It does hurt. It does offend his dignity. It does offend the whole group he belongs to. It does contradict deeply rooted fundamental principle of equality and tolerance. It does shift attention from excellence in job, to stereotypes. It does hurt performance. Economy. Achievements. As such:

The semantic scope of the word "sex" and even the subjective direct intent of the Congress, may become, less relevant, in unsolved cases of ambiguity. But of course, one may call it wrongly of course, "judicial activism". But, it is very crucial and necessary method.

Thanks

Posted by: El roam | Sep 11, 2020 11:41:18 AM

Asher writes:

“[Cline]’s argument doesn't require any view that ‘ordinary people’ do or should want to fix age discrimination, or any view that Congress wanted to fix it, or even any acquaintance with the statute; it's just a claim about what people understand ‘talk’ of age discrimination to mean given the forms age discrimination typically takes.“

Yes, that is how Souter frames his majority opinion: Nothing to see here, folks! Just good old-fashioned common-usage textualism here!

Of course, that's the rhetoric he had to use in the early '90s, when SCOTUS's textualist revolution had begun. But I remain unconvinced. (FWIW Justice Thomas was not buying the textualist credentials of the majority opinion either).

Here's why I think that the distinction between focusing on the “typical“ instance of a a generally prohibited category (common-usage textualism) and focusing on the mischief that the prohibition is seeking to cure (purposivism) is paper-thin. Yes, I know, the former is appropriate in orthodox textualism, and the latter is the “mischief rule,” a form of purposivism only to be used for disambiguation. But the difference between the two seems to me to be an illusion.

The mischief rule, after all, is just an instruction that the interpreter focus on the typical problem that the lawmaker was trying to solve. Treating the subject of a prohibition as a modal noun because people typically view the prohibition as being directed at only a subset of the things literally covered by that noun sure sounds like the mischief rule to me, albeit tricked out in textualism fancy dress to win the votes of textualists.

In any case, by treating nouns in prohibitions as such modal nouns, implicitly qualified by some colloquial understanding of a “typical” case that is conjured up in language users' minds by "context," interpreters can evade textualist’s stern — and to my mind, absurd — prohibition on looking at statutory purpose in trying to figure out what that prohibition really means. Just say that the noun has that implicit qualifier because that’s how “most people’ would read the sentence "in context" - and then enlarge the textual context. I submit that Yates’ discussion of whether or not a fish is a “tangible object” deploys a similar sort of modal logic, looking at “the statute as a whole” to infer implicit modifiers in ways that look suspiciously like looking at the mischief to which the statute is directed.

Of course, the more statutory words you add to the linguistic “context,” the more this sort of logic becomes exactly the Mischief Rule. Cline looked at the entire phrase “discrimination because of age.” But why should textualism stop there? Why not include the context of all of the statute's text -- for instance, the statutory preamble’s official findings and purpose -- be invoked to determine the implied qualifiers on an apparently unqualified noun?

Of course, once one asks how an ordinary person would read an entire statute, one is squarely in the land of pure purposivism, because non-lawyers unschooled in textualist arcana, reading multiple sentences apparently directed at an apparent mischief, do not observe the Plain Statement Rule's bizare division of linguistic material into text and purpose. They instead follow the common sense of asking what words are trying to accomplish.

So, yes, Asher, absolutely: You can frame Cline's majority opinion as "textualist." I believe, howeve, that a smart lawyer will be able to nudge *that* brand of textualism into de facto purposivism based on the whole statute's context. And a good thing, too.


Posted by: Rick Hills | Sep 11, 2020 8:10:13 AM

From a historical perspective, Cline is nonsense. The 26th Amendment, enacted within four years of the ADEA, prohibits discrimination "on account of age," and does not mean "old age."

Posted by: arthur | Sep 11, 2020 7:53:56 AM

Good points Asher, but just a note: I would suspect that people in 1964 would overwhelmingly say that discrimination against men and white people should be banned if discrimination against women and black people was.

Posted by: Jr | Sep 11, 2020 5:09:32 AM

You say:

According to Cline, “talk about discrimination because of age is naturally understood to refer to discrimination against the older," because the "commonplace conception of American society...as a 'youth culture.'" "[I]n a world where younger is better," the Cline majority concluded, "talk about discrimination because of age is naturally understood to refer to discrimination against the older." The obvious implied premise of this logic is that ordinary people read "discrimination because of age" to mean "discrimination because of old age," because old-age discrimination is the mischief that ordinary people want to fix.

***

That is not only non-obvious to me, but a very circuitous way of explaining a simple point. As I read the argument, the modal form of discrimination on the basis of age is discrimination against the old, rarely preference of the old and discrimination against the young, so when we hear "talk about discrimination because of age," we "naturally underst[an]d" that talk as talk about discrimination against the old. This argument doesn't require any view that "ordinary people" do or should want to fix age discrimination, or any view that Congress wanted to fix it, or even any acquaintance with the statute; it's just a claim about what people understand "talk" of age discrimination to mean given the forms age discrimination typically takes. You, rather more circuitously, seem to take the argument to go something like: when you see a statute that forbids age discrimination you think about the ills of the world, as judged from some "ordinary" perspective, and what it is some hypothesized ordinary people in Congress might be attempting to fix by banning something they call age discrimination, and conclude that of the ills of the world that are vaguely within the linguistic ballpark of age discrimination, discrimination against the old is the one ordinary people would most likely attempt to fix, given its relative prevalence, and to the exclusion, for some reason, of discrimination against the young.

The mistakenness of what you say Cline meant is confirmed by considering how our respective readings of Cline map onto race or sex discrimination statutes, and looking at what Cline says about them. I'm not at all sure that a meditation on what mischiefs "ordinary people want to fix" (or what Congress in 1964 wanted to fix) in the linguistic ballparks of race and sex discrimination would lead us to the conclusion that those mischiefs include discrimination against whites and men, any more (indeed probably less) than pondering what mischief in the vicinity of age discrimination ordinary people want to fix would lead us to the conclusion that it includes discrimination against the young. But of course, we do think that race and sex discrimination laws ban discrimination against whites and men, and the Cline Court says so. This is because, as the Cline Court explicitly says, while we often use "age" without modification to mean old age ("with age comes [fill in the blank]"), we do not use "race" or "sex" without modification to mean solely minority races and being female. So even if discrimination against minorities and women are the overwhelmingly predominant forms of race and sex discrimination, and even if those are the mischiefs we might well suppose ordinary people want to fix to the exclusion of others, you just can't read discrimination on the basis of race or sex to exclude discrimination against whites and men. So Cline is a good textualist opinion that doesn't trade on your notions of using purpose to diffuse semantic unambiguity, though I wouldn't be surprised if its omission from the Bostock dissents is, as you suggest, a function of the dissenters (mis)understanding it in the way that you do.

Posted by: Asher Steinberg | Sep 11, 2020 12:11:26 AM

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