Most summaries of the Supreme Court arguments on the three Title VII cases on sexual orientation/gender identity reflect that the arguments were a rather convoluted mess.  While I have a hunch that we are heading toward a 5-4 decision with the judges splitting on partisan lines, there was enough in the argument to blur the lines as justices seemed to depart from their traditional stances.

One of the big debate in legal fields over the past 100 years is about the theory of “legal realism.”  In oversimplified terms, legal realism contends that judges are just politicians wearing robes and that they decide cases based solely on their policy preferences.  The alternative theory, as expounded by Chief Justice Roberts during his confirmation hearing, is that judges are just umpires calling the balls and strikes based on rules drawn up by others.  In this latter school of thought, judges are trying to interpret the meaning of texts and should not be concerned about the real world consequences of their decisions.

Much of the debate in the ball and strikes theory is about the proper method of interpreting legal texts.  In recent years, conservatives have been big on textualism.  Textualism posits that words in a text have meaning.  If some of the terms are ambiguous, there are rules that can be applied to clarify the text (e.g., by looking at the term in the context of that statute and how that term is used in other similar statutes).  The alternative to textualism is often a reference to legislative history, but — as many statutes were written during a time when liberals had the upper hand in Congress — legislative history (primarily the reports summarizing what a bill was intended to achieve) often supported a more liberal result.  So conservative judges argued that those reports were never actually approved by Congress and that judges should only look at what Congress actually passed — the statutory language itself. Continue Reading...