Since Justice Antonin Scalia was not available to be on the podcast, we reached out to Northwestern Law School’s John Paul Steven’s Professor of Law, Andrew Koppelman, and Jackson Walker Labor & Employment attorney, Sara Harris, to fill in. Justice Scalia believed in the concept of textualism when it came to the Court interpreting the law, without allowing one’s personal political bias to play a role. According to Merriam Webster, textualism is “a legal philosophy that laws and legal documents (such as the U.S. Constitution) should be interpreted by considering only the words used in the law or document as they are commonly understood.” The problem, according to Koppelman is that textualism has to be balanced with context. If a Justice were to apply or misapply the context of the issue, then textualism could be made to fit the outcome the Justice wants, regardless of what the text of the law says. In the Bostock v. Clayton Co., Georgia decision, the five conservative judges split 3-2 on how textualism applied to the 1964 Civil Rights Act, Title VII issue of “because of sex” discrimination, and gave the LGBTQ+ community a win in the process. We dive deep into the text, and the context of the decision.
Andrew Koppelman is also the author of the recently published book, Gay Rights vs. Religious Liberty? The Unnecessary Conflict (2020).
Sara Harris is an editor for The Young Lawyer Editorial Board for The American Lawyer.
After a bit of a hiatus, we bring back a few items that inspired us this week, and we hope to inspire you as well.
Greg may be retiring his In Seclusion Podcast at the end of this week (awwww), but there are plenty of legal podcasts to fill the void. Here is a couple.