Gorsuch’s half-way textualism surprises and disappoints

Justice Gorsuch committed errors of both source and time. He determined the ordinary public meaning of a 1964 statute by relying on case law from decades later. In 1964, there was another sense of “discriminate against” that Justice Gorsuch did not consider. Professor James Phillips conducted a thorough study of how the phrase “discriminate against” was used in the 1950s and 1960s. That phrase did not merely refer to differential treatment. Rather, “discriminate against” referred to differential treatment “based on some trait [that is] motivated by prejudice, or biased ideas or attitudes.” Webster’s New World Dictionary from 1960 accurately captured this sense: “to make distinctions in treatment; show partiality (in favor of) or prejudice (against).” And Funk & Wagnalls Standard Dictionary from 1963 provides a similar definition: “to act toward someone or something with partiality or prejudice: to discriminate against a minority.”…

Had Justice Gorsuch relied on the ordinary meaning of “discriminate against” in 1964, he would have recognized that bias or prejudice had to play some role in the differential treatment. It wasn’t enough to merely treat people differently “because of” sex. Regrettably, Justice Gorsuch cherry-picked dictionary definitions. And he did not acknowledge contrary evidence. (Justice Alito’s dissent cited Professor Phillips’s survey). Moreover, Justice Gorsuch treated judicial decisions from decades after the enactment of the Civil Rights Act as part of the statute’s ordinary meaning. As a result, Justice Gorsuch stripped the phrase “discriminate against” of its essential elements — bias or prejudice.