Rule of Law

Behind Recent ‘Progressive’ Supreme Court Victories, a Strategic Focus on Text, History

It’s not rocket science, to hear Georgetown Law professor Brian Wolfman tell it.

Lawyers hoping to convince a U.S. Supreme Court majority to rule for their client must appeal to the judicial methodologies in vogue at the court. These days, that means homing in on statutory text to win over the court’s “textualist” members and diving into constitutional history and practice to persuade its “originalists.”

“Any litigator is going to employ arguments that they think are more likely to be embraced by a decisionmaker,” Wolfman said. “It’s really as simple as that.”

For Wolfman, that meant focusing on the specific words in Title VII of the 1964 Civil Rights Act to try to revive his client’s discrimination lawsuit against the city of St. Louis. Wolfman’s client, St. Louis police Sgt. Jatonya Clayborn Muldrow, alleged she was replaced by a man on a prestigious FBI task force and transferred to a more administrative role because of her gender.

Below, the U.S. Court of Appeals for the Eighth Circuit ruled for the city because the transfer had purportedly not caused a “materially significant disadvantage” for her. Wolfman’s briefing and argument to the court focused on the plain language of Title VII, which prohibits employment discrimination on the basis of protected characteristics and does include the words “materially significant disadvantage.”

The Supreme Court agreed, and in a majority opinion written by Justice Elena Kagan and joined by three of the court’s conservative members, held that “Title VII’s text nowhere establishes that high bar.”

“Our strategy—strategy is probably too fancy a word—our approach to the litigation was, ‘read the statute,’” said Wolfman.

Muldrow v. City of St. Louis and other recent Supreme Court decisions show how litigants can achieve substantively progressive results—whether in the areas of civil rights, employment law, consumer protection or criminal defense—from today’s conservative majority by placing text and history at the center of their written and oral advocacy.

Championed by the late Justice Antonin Scalia and conservative legal figures such as Robert Bork and Edwin Meese, textualism and originalism are now seen as the default methodologies for interpreting statutes and the Constitution on the Supreme Court.

Although both are subject to constant tinkering by the legal academy, textualism generally refers to a method of interpreting laws in which judges look primarily, if not exclusively, to the language of statutory text over other sources. Originalism involves examining the meaning of the U.S. Constitution by looking to how it was understood at the time of its ratification.

Textualist Arguments Achieve Victories for Workers, Whistleblowers

These days, it seems every few weeks brings a new Supreme Court decision eliminating what textualists might call an “atextual” requirement imposed by a lower court on a litigant to include something in his or her complaint, or prove something at trial, that isn’t actually mentioned by the words of the statute.

In Smith v. Spizzirri, the Supreme Court last week overturned a line of cases out of the U.S. Court of Appeals for the Ninth Circuit crafting an exception to the Federal Arbitration Act’s command that courts “shall” grant a plaintiff’s request to stay a lawsuit pending arbitration so that it remains alive on the docket. The decision was a procedural victory for delivery drivers suing their employer for state and federal labor violations.

In another employment-related arbitration case from last month, the court in Bissonnette v. LePage Bakeries Park St. held workers need not work in the transportation industry itself to be exempt from arbitration under an FAA carve-out for “seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” The decision revived a wage-and-hour lawsuit against a baked goods company.

The same dynamic was on display in the court’s February decision in Murray v. UBS Securities.

There, the court rejected the notion that financial whistleblowers must prove “retaliatory intent” by their employers under the 2002 Sarbanes-Oxley Act, holding that the law “does not reference or include” such a requirement. The decision was a victory for former UBS research strategist Trevor Murray in his whistleblower lawsuit against the Swiss banking giant.

Originalism Comes to CFPB’s Rescue

Originalism—often deemed the “cousin” of textualism—instructs judges to look to the meaning of constitutional text at the time it was adopted and apply it in modern cases. The judicial doctrine has become closely associated with the Supreme Court’s conservative majority and its turn away from abortion rights and expansion of the Second Amendment.

But advancing originalist arguments is a strategy the left-leaning group Constitutional Accountability Center has embraced since its inception in 2008, including this term, where it filed 19 amicus briefs advancing text and history-based arguments in more than a dozen Supreme Court merits cases.

“We obviously very much believe that text and history arguments can help produce progressive outcomes even with this very conservative court,” said CAC Chief Counsel Brianne Gorod.

A prime example of that came last week in the case Consumer Financial Protection Bureau v. Community Financial Services Association, where staunchly conservative Justice Clarence Thomas wrote a majority opinion upholding the independent funding structure of the CFPB in a case that threatened to permanently kneecap the consumer finance watchdog.

In that case, Gorod had written an amicus brief on behalf of professors of history and constitutional law arguing that funding the CFPB through the Federal Reserve rather than via annual spending bills is perfectly consistent with the text and history of the Constitution’s appropriations clause.

Those arguments seemed to resonate with Thomas, who expressed skepticism of a challenge from the payday loan industry to the CFPB’s funding structure during oral arguments in the case in October.

“I get your point that this is different, that it’s unique, that it’s odd, that they’ve never gone this far,” Thomas said the. “But not having gone this far is not a constitutional problem. It may be a problem with analogues, but it doesn’t prove your case. And I think we just need you to give us a finer point than we’ve had.”

Thomas ultimately echoed those arguments in his majority opinion, finding that Congress had created similar independent funding schemes following the ratification of the Constitution.

“I think it is clear—and the CFPB case makes this clear—that text and history arguments are important to basically every justice on the Supreme Court and every judge on the courts of appeals,” Gorod said. “And so making these sorts of arguments is critical to trying to get success in the courts today, period.”

At the same time, Gorod acknowledges there are times when not even originalist arguments can move the court to embrace a progressive vision for the Constitution.

“It can be true that there are cases in which even the self-professed originalists on the court either ignore history or distort history to reach the results that they want,” she said. “That’s certainly the case. And there are, unfortunately, many examples of that, but I don’t think that’s a reason for progressives not to make arguments showing what the text history of the Constitution truly means and what it truly requires.”