Rule of Law

Justice Gorsuch’s Abandonment of Textualism in NFIB v. OSHA

Although in 2015 Justice Kagan famously quipped “we are all textualists now,” perhaps no current Supreme Court justice is more closely associated with that mode of statutory interpretation than Justice Gorsuch.  At his very first sitting in 2017, he asked, “Wouldn’t it be easier if we just followed the plain text of the statute? What am I missing?”  Earlier this month at oral argument in NFIB v. OSHA, the case about the legality of the agency’s workplace vaccinate-or-test policy, he invoked the identical phrase, reminding his colleagues, the litigants, and listeners around the country of his purported commitment to textualism.

But when the Court handed down its ruling in NFIB v. OSHA, that commitment was nowhere to be found.

Textualism’s absence from the per curiam opinion, which Gorsuch joined, was certainly notable, but the lack of close textual analysis in the concurring opinion that he separately penned was downright conspicuous.

Here at CAC, we have called out examples of what we call “fauxriginalism,” where conservatives purport to be adhering to originalism, but instead achieve conservative ends by selectively following only some of the Constitution or by distorting the Constitution’s meaning.  So it’s perhaps not surprising that we expected to find in the concurrence what we call “pretextualism,” where conservatives purport to be adhering to textualism but instead distort or selectively analyze the text of a statute to achieve conservative ends.

But Justice Gorsuch’s concurrence doesn’t waste effort on pretext.   Instead, as Professor Anita Krishnakumar explains in her thoughtful piece in the Election Law Blog, the concurrence jettisons textualism completely.  It relies instead on a substantive canon known as the “major questions doctrine,” which infers that the absence of a clear statement of authorization from Congress on matters of great economic or political significance is damning to any agency action on the matter.

Professor Krishnakumar explains:

Usually, when the Justices invoke a substantive canon, they also at least attempt to analyze the statute’s text—even if only to conclude that the text is ambiguous, thereby (conveniently) necessitating recourse to a substantive canon. But neither Justice Gorsuch’s opinion nor the per curiam opinion in NFIB v. OSHA attempts even the pretext of such textual analysis. There is no careful parsing or discussion of the ordinary meaning of the OSH Act provision that authorizes OSHA to issue “emergency” regulations upon determining “(A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” There are no dictionary definitions of the statutory terms “emergency,” “substances,” “agents,” “physically harmful,” or “new hazards.”

One has to look to the dissent by Justices Breyer, Sotomayor, and Kagan for any serious engagement with the statutory language.

To be sure, Justice Gorsuch has demonstrated on occasion that he can be a disciplined textualist, regardless of whether the methodology leads to what might be deemed “conservative” results.  For instance, in New Prime v. Oliveira, Gorsuch closely parsed the text and structure of the Federal Arbitration Act (FAA) to conclude (for a unanimous court) that a transportation worker, despite being classified as an independent contractor by his employer, was exempt from the FAA’s arbitration requirement and thus could seek relief for his employer’s illegal wage practices in a class action lawsuit.

And in Bostock v. Clayton County, Justice Gorsuch penned a tour de force in textualism, concluding for the majority of the Court that Title VII’s protections against employment discrimination “because of . . . sex” prohibit discrimination based on sexual orientation or transgender status.  Gorsuch’s opinion relied on the “ordinary public meaning of the statute’s language at the time of the adoption” and refused to infer meaning from Congress’s failure to pass legislation expressly protecting against sexual identity and gender identity discrimination.  In contrast, in his concurrence in NFIB v. OSHA, Gorsuch placed great weight on Congress’s failure to enact a vaccine mandate in the two years since the COVID‑19 pandemic began, inferring from that inaction a lack of congressional intent to authorize OSHA to implement a vaccinate-or-test mandate.

It’s impossible to say for sure what this means for coming cases, but Professor Krishnakumar concludes:

[I]t is hard to view this case as anything other than a sign that at least in high-stakes political cases, the conservative Justices on the modern Roberts Court no longer feel the need to follow a textualist or formalist approach to statutory interpretation even as a pretext to justify reaching their preferred interpretive outcomes.

For the sake of our republic, let’s hope the justices prove her wrong.  And until then, it is our collective responsibility to call out decisions like NFIB v. OSHA.  If conservative justices claim originalism or textualism as their North Star, we need to remind them where a principled application of this methodology truly leads.