Section 7

Citation: Section 7
Parent Document: Bostock v. Clayton County, 590 U.S. 644 (2020)
Jurisdiction: United States (federal)
Effective Date: 2020-06-15
Original Source: https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ ↗

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First, courts must follow ordinary meaning, not literal
meaning. And courts must adhere to the ordinary meaning
of phrases, not just the meaning of the words in a phrase.
   There is no serious debate about the foundational inter-
pretive principle that courts adhere to ordinary meaning,
not literal meaning, when interpreting statutes. As Justice
Scalia explained, “the good textualist is not a literalist.” A.
Scalia, A Matter of Interpretation 24 (1997). Or as Profes-
sor Eskridge stated: The “prime directive in statutory inter-
pretation is to apply the meaning that a reasonable reader
would derive from the text of the law,” so that “for hard
cases as well as easy ones, the ordinary meaning (or the
‘everyday meaning’ or the ‘commonsense’ reading) of the
relevant statutory text is the anchor for statutory interpre-
tation.” W. Eskridge, Interpreting Law 33, 34–35 (2016)
(footnote omitted). Or as Professor Manning put it, proper
statutory interpretation asks “how a reasonable person,
conversant with the relevant social and linguistic conven-
tions, would read the text in context. This approach recog-
nizes that the literal or dictionary definitions of words will
often fail to account for settled nuances or background con-
ventions that qualify the literal meaning of language and,
in particular, of legal language.” Manning, The Absurdity
Doctrine, 116 Harv. L. Rev. 2387, 2392–2393 (2003). Or as
Professor Nelson wrote: No “mainstream judge is interested
solely in the literal definitions of a statute’s words.” Nelson,
What Is Textualism?, 91 Va. L. Rev. 347, 376 (2005). The
ordinary meaning that counts is the ordinary public mean-
ing at the time of enactment—although in this case, that
temporal principle matters little because the ordinary
meaning of “discriminate because of sex” was the same in
1964 as it is now.
   Judges adhere to ordinary meaning for two main reasons:
rule of law and democratic accountability. A society gov-
erned by the rule of law must have laws that are known and
understandable to the citizenry. And judicial adherence to
                 Cite as: 590 U. S. ____ (2020)             7 KAVANAUGH, J., dissenting

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