Episode 61

Statutory interpretation rarely makes the front page.  But news outlets everywhere1 have reported the US Supreme Court decision making it illegal to sack people simply for being gay or transgender2Bostock v Clayton County3.  Much of the ruckus was over the fact that it was a Trump appointee, Neil Gorsuch, who held that the Civil Rights Act of 1964 protects LGBTQ people being discriminated against on the basis of ‘sex’.  Americans look first to the ordinary public meaning of statutory words when they were enacted4.  But where those words are clear, the judge said, ‘it’s no contest’; adding that ‘only the words on the page constitute the law’, and that ‘the limits of the drafters’ imagination supply no reason to ignore the law’s demands’.  The Judicial Crisis Network said Gorsuch J had ‘bungled textualism so badly’5.  Although the US follows different protocols to ours, this case shows the pivotal role interpretation may play in public affairs – Gordon Brysland.

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In this episode:

Credits – Gordon Brysland, Oliver Hood & Jeffrey Barnes.


1 Shear (15 June 2020) New York Times (at 1) for example.

2 Gerald Bostock was sacked for participating in gay softball games.

3 590 US __ (2020), cf MacDonald [2003] UKHL 34 (at [107, 114]).

4 Gorsuch J (at 4), New Prime 586 US __ (2019), Scalia & Garner (at 78-92).

5 Trump tweeted that it was ‘a very powerful decision, actually’.