In Bostock v. Clayton County, the Supreme Court held that Title VII protects gay and transgender individuals from employment discrimination. Writing for the majority, Justice Neil Gorsuch adhered to textualist principles and relied on the ordinary public meaning of the phrase “discriminate because of sex.” Despite the majority opinion purportedly not reaching beyond the words of the statute, three other conservatives on the Court accused Justice Gorsuch of legislating from the bench. Central to this Comment, Justice Brett Kavanaugh took exception with how Justice Gorsuch reached his ordinary meaning of the phrase. The debate between these two Justices can be characterized as a debate between semantics and pragmatics—two schools within the field of linguistics. Justice Gorsuch’s stringing together the precedent-defined meaning of the individual terms of the statute resembled semantics. Justice Kavanaugh’s reliance on considering the phrase as a whole and an examination of the broader societal and historical context resembled pragmatics.
This Comment proposes a sliding-scale approach that indicates when to move between semantics and pragmatics. What makes the scale slide is the pool of precedent, or the variability in how courts and their precedent have defined the words of a phrase. As the pool of precedent increases, the need to support a semantics-derived meaning of the phrase with pragmatics increases. To create a proxy for the variability of precedent-defined words, this Comment creates a tiered structure based on our court system’s hierarchy of precedent. By adopting this sliding-scale approach, courts will be able to interpret statutes while supporting textualism’s goal of judicial restraint.