Text is Not Enough

In Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act of 1964 protects gay and lesbian individuals from employment discrimination. The three opinions in the case also provided a feast for Court watchers who study statutory interpretation. Commentators across the ideological spectrum have described the opinions as dueling examples of textualism. The conventional wisdom is thus that Bostock shows the triumph of textualism.

The conventional wisdom is wrong. Instead, Bostock shows what those who have studied statutory interpretation have known for decades: judges are multimodalists, drawing from a panoply of forms of legal argumentation. In particular, Bostock shows that judges are inevitably common-law thinkers, even when interpreting statutes.