Logic Without History – John O. McGinnis

Few Supreme Court majority opinions have provoked such mirror-image approbation as Bostock v. Clayton County and United States v. Skrmetti. Bostock let progressives hail Title VII as a new charter of LGBT workplace equality. Skrmetti, by contrast, let conservatives cheer a state’s power to withhold puberty blockers from minors, preventing premature gender transitioning. Scratch the varnish, however, and both triumphs expose the similar flaw in reasoning, even though Skrmetti at least lands on the correct outcome.

Each majority assembled an elegant logical edifice while evading the question that the cases actually presented: what did the controlling words of the relevant enactments as understood by the people who passed them say about discrimination against the relevant group—homosexuals in the case of Title VII and transgender people in the case of the Fourteenth Amendment? The upshot is stark: Bostock misconstrued Title VII, and Skrmetti evaded addressing the meaning of the Fourteenth Amendment.

In both cases, Justice Samuel Alito showed the better ways, effectively confronting the meaning of the relevant enactment and determining whether it gave special protection to the class at issue. It is not enough for judges to be theoretical originalists in either statutory or constitutional interpretation. They need to put these theories correctly into practice.

Begin with Bostock. Justice Neil Gorsuch’s opinion offers an illusion of tight analytic logic applied to Title VII of the Civil Rights Law, which forbids employment discrimination “because of … sex.” Gorsuch’s logic hinged on a “replacement” concept: Imagine two otherwise identical employees, Gorsuch argues, one male and one female, who are attracted to men. Then fire only the man for that reason. That discharge thus is “because of … sex” and violates Title VII.

The syllogism is crisp enough for an LSAT prep book, yet it ignores the entire semantic context of Title VII. In mid-century legal English, “sex discrimination” meant treating women worse than men, such as through unequal pay or glass ceilings, while homosexual conduct still carried criminal penalties in many states. No committee report, floor speech, or press story hints that Congress conceived Title VII as a lever for regulating sexual orientation or transgender status. The majority effectively transports a twenty-first-century definition back into a mid-century enactment. It does not recognize that in law, as in fiction, the past is often a foreign country.

This opinion is not sound textualism, because it indulges instead in a kind of algorithmic literalism. From Blackstone on, sophisticated commentators have understood that context is key to understanding. Otherwise, like the majority in Bostock, one will lose the understanding to which the lawgivers aimed.

In his Bostock dissent, Justice Alito powerfully excavates Title VII’s meaning in its historical context. Dictionaries, EEOC rulings, and newspaper usage all confine “sex discrimination” to male–female inequality. Discrimination resulting from pregnancy fits because its burdens fall on women as women; sexual orientation and gender identity do not. Thus, Alito argues that the Court reaches its favored result only by discarding the statute’s original meaning.

The Skrmetti majority had a different ideological valence but also failed to do the necessary work of historical interpretation. Tennessee’s Senate Bill 1 bars puberty blockers and cross-sex hormones for minors when prescribed for gender dysphoria, and yet permits the same drugs for other pediatric conditions. Writing for the Court, Chief Justice John Roberts deploys a tidy logic designed to dodge the hard question: whether discrimination against transgender people warrants heightened scrutiny under the Fourteenth Amendment. By rebranding the law as a neutral “medical use” regulation, he tries to tuck it beneath Geduldig v. Aiello—a decision that treated a pregnancy exclusion as non-discriminatory precisely because not all women are pregnant. Similarly, Roberts argues that because the Tennessee statute does not affect all transgender people, rational-basis review suffices. Yet it can be persuasively argued that the statute is not neutral because it forbids the same medicines only when they aid a gender transition, an overt discrimination against a defined class. Only transgender adolescents shoulder the burden of the statute.

Alito, here as in Bostock, was the voice of common sense. He stated that the law prohibits medical procedures that are intended either to “enabl[e] a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex,” or to “trea[t] purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” Therefore, the underlying basis for the classification is a minor’s intent to express a gender identity different from the minor’s biological sex.” A court that insists the statute is neutral never has to ask the decisive question of whether the Fourteenth Amendment’s anti-caste principle forbids the burden in the first place.

But the concurrences supply what the lead opinion omits. Justice Barrett turns to Footnote 4 of Carolene Products. Heightened scrutiny under the Fourteenth Amendment, according to Barrett’s interpretation, is reserved for laws that adversely affect “discrete and insular minorities”—groups that are in a similar political and social condition as those the Fourteenth Amendment ratifiers primarily had in mind—African Americans in the nineteenth century. Each factor involved in that “discrete and insular minority” status—immutability, historical state-enforced oppression, political powerlessness, and irrelevance of the trait to civic competence—asks whether a modern claimant stands in the Freedmen’s shoes.

To be sure, it could be argued that the focus on whether a minority is discrete and insular as suggested by Carolene Products is not an originalist analysis. Critics sometimes paint it as a roving commission for modern values. But correctly used, the analysis focuses on whether a group has relevant characteristics similar to the freedmen who were the central objection of the Fourteenth Amendment’s protection. Such common features suggest that the equality principle in the Fourteenth Amendment provides the same special protection that they enjoyed. In short, the approach discerns the meaning of equality as an anti-caste principle and deploys historically based criteria to determine whether its scope sweeps to include other groups.

Justice Alito’s separate concurrence applies those criteria with even greater granularity. He notes that race is visible at birth and immutable. By contrast, transgender status becomes visible only after social transition and can shift with further treatment. The oppression of Black people under slavery and the Black Codes was total and state-sanctioned; mistreatment of transgender persons, though real, has never matched that systemic oppression from the state. Freedmen even lacked the franchise. In contrast, transgender Americans, though few, have accumulated protective statutes, executive orders, and corporate policies with remarkable speed. And Tennessee’s measure rests on contested medical judgments, not on claims that the affected group is unfit for civic life. On every axis, the analogy to the Freedmen collapses, so heightened scrutiny is unwarranted.

Lay readers may wonder why such historical analysis matters. The answer lies in the tiers of equal-protection scrutiny. Most laws sail through the rational-basis test: government needs only show a plausible connection to a legitimate purpose. If, however, a statute classifies or targets a suspect class, the Court applies “strict” or “intermediate” scrutiny and almost invariably strikes the measure down. Thus, the preliminary question determining the nature of the classification is generally decisive.

Seen in that light, both majority opinions illuminate the peril of logic without history. Bostock enlarged a statute through syllogism and produced a result progressives loved; Skrmetti risked shielding a targeted ban through verbal finesse. Original public meaning creates a more stable law that follows the judgments of the enactors.

Of course, textualist analysis does not require us to deny that social norms can and do evolve. But forcing that evolution is emphatically not the role of the Court. Congress could amend Title VII explicitly to cover gender identity; Tennessee could revisit SB 1 in the light of accumulating medical data. What courts must not do is avoid grappling with the past, because the law is part of our past. When justices try, they sow confusion that harms the very movements they mean to aid. Bostock’s leap invites critics to accuse textualism of opportunism, and Skrmetti’s initial dodge invited critics to call the Court indifferent to equality.

The parties who cheered these opinions for partisan reasons may yet rue their logic. Progressives who applauded Bostock’s elasticity may confront it again when a deregulatory majority uses a literal meaning to narrow the scope of an environmental law even if the historical context shows that the understanding was broader. Conservatives who welcome Roberts’s relabeling in Skrmetti would be uneasy if a future Court used it to avoid addressing claims of discrimination against a religious group. What drives such logical constructs may ultimately be less legal rigor than the lure of convenience. Such shortcuts spare judges the archival labor of uncovering what mid-century legislators or Reconstruction-era citizens meant—and spare them, too, the discomfort of obeying values now out of vogue. But if interpretation is to recover the meaning of the law that governs us, it must begin where the text began, in the history that provides signs of the meaning the words still carry.