Document Type

Working Paper

Publication Date

9-23-2020

SSRN Discipline

Legal Scholarship Network; PRN Subject Matter eJournals; Rhetoric & Communication Research Network; Philosophy Research Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Private Law eJournals; Law & Society: Public Law eJournals; Administrative Law eJournals; LSN Subject Matter eJournals; Political Science Network; Employment, Labor, Compensation & Pension Law eJournals

Abstract

Scholars of interpretive theory have long engaged with the battle between textualism and purposivism But this emphasis has obscured important divisions within textualism—divisions that were on full display in the Supreme Court's recent decision in Bostock v Clayton County In holding that Title VII's prohibition on sex discrimination bars the disparate treatment of gay lesbian and transgender individuals the Court applied what this Comment calls "formalistic textualism"—an approach that instructs interpreters to carefully parse the statutory text focusing on semantic context and downplaying other concerns But the dissenting opinions responded with their own brand of textualism The dissents' more "œflexible textualism" allows interpreters to make sense of a statutory text by looking at social context and practical consequences This Comment explores these competing textualisms and—drawing on principles of judicial legitimacy—offers a theoretical case for preferring the formalistic version But whether or not one accepts that bottom line interpretive theorists should begin to explore the fact that judges apply not simply textualism but textualisms

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