In Oncale, Scalia stressed that the text of Title VII mattered a great deal more in the end than did the intentions or expectations of the text’s authors. Gorsuch, who repeatedly cited Oncale in his Bostock opinion, made the same point. Here’s how Gorsuch put it:
“Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”
It might come as a surprise to find Gorsuch and Scalia playing such big roles in a Supreme Court decision that is being celebrated as a landmark liberal victory. But that misses the point of textualism. In the words of another self-described textualist, the veteran libertarian litigator and current Arizona Supreme Court Justice Clint Bolick, “true textualists will not always agree with the policy results of their decisions.” But “personal policy preferences must yield to the rule of law or we have no rule of law.”
