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May 29, 2019 Articles

The Supreme Court Embraces Statutory Originalism

Everything old is new again.

By Steven B. Katz

The two newest justices on the U.S. Supreme Court delivered its two newest arbitration decisions this past January. While the cases are a “split” in the arbitration wars—one for the proarbitration side, one for the antiarbitration side—they speak with one voice on statutory interpretation: “statutory originalism” is now the Court’s philosophy of interpretation. This has serious implications for employment law.

1–1 in the Arbitration Wars

First came a win for arbitration proponents. In Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S.Ct. 524 (2019), Justice Kavanaugh wrote for a unanimous court that when the parties to an arbitration agreement delegate “gateway” arbitrability questions to an arbitrator, the courts must send the dispute to arbitration even if it is indisputably inarbitrable. Although the Court previously held in Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010), that parties may delegate gateway arbitrability questions to an arbitrator as long as there is “clear and unmistakable” evidence of the delegation, some circuits have held that a district court need not honor a delegation if doing so would be “wholly groundless” because the underlying dispute was clearly inarbitrable. Kavanaugh rejected the idea that a “wholly groundless” exception could be read into the Federal Arbitration Act (FAA). First, he explained, courts, as always, “must enforce arbitration contracts according to their terms.” Second, “[w]e must interpret the Act as written”—and as “the Act contains no ‘wholly groundless’ exception, . . . we may not engraft our own exceptions onto the statutory text.” 

This reasoning seems unremarkable and airtight—except that there is a clear textual tether for a “wholly groundless” exception: Section 10 of the FAA “provides for back-end judicial review of an arbitrator’s decision if an arbitrator has ‘exceeded’ his or her ‘powers.’” Deciding an inarbitrable dispute is the epitome of an arbitrator exceeding his or her powers. So why doesn’t section 10 permit courts to avoid the fruitless act of compelling arbitration of a gateway issue that can only be decided one way, even under the lenient review applicable to arbitration decisions? Because, Kavanaugh wrote, “Congress has designed the Act in a specific way, and it is not our proper role to redesign the statute.”

Two weeks later, opponents of arbitration got their victory. In New Prime, Inc. v. Oliveira, 139 S. Ct. 532 (2019), Justice Gorsuch, also writing for a unanimous Court, held that the FAA does not cover certain transportation workers—whether the worker is an employee, an independent contractor, or something else.

The FAA generally favors arbitration of disputes and provides that arbitration agreements should be enforced. Section 2 broadly extends that generous enforcement to any “contract evidencing a transaction involving commerce.” However, there are exceptions. Section 1 exempts “contracts of employment of seamen, railroad workers, or any class of workers engaged in foreign or interstate commerce.” To keep section 1 from nullifying section 2, the Court held in Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 112, 127 (2001), that any class of workers engaged in foreign or interstate commerce refers to “transportation workers” or those “actually engaged in the movement of goods in interstate commerce.”

In New Prime, the Court turned to the meaning of contracts of employment. Before New Prime, most courts looked at section 1’s language through 21st-century eyes: contract of employment meant a contract that created an employer-employee relationship. The plaintiff, an interstate truck driver, was arguably an independent contractor, not an employee. However, the New Prime Court interpreted contracts of employment according to its meaning when the FAA was passed in 1925 and concluded that the meaning of employment was “broader than may be often found in dictionaries today”: the term was synonymous with the broader term work rather than the narrower current understanding of an employer-employee relationship. 139 S. Ct. at 539–41. Thus, a contract of employment “usually meant nothing more than an agreement to perform work.” Id. Therefore, the Court held that even though the plaintiff was an independent contractor (as that concept exists today), his contract still fell within the section 1 exemption, and New Prime could not compel him to arbitrate his wage-and-hour class action. Id. at 543–44.

What Is Happening Here?

Gorsuch defended the style of interpretation used in New Prime by writing thus:

[I]t’s a “fundamental canon of statutory construction” that words generally should be “interpreted as taking their ordinary . . . meaning . . . at the time Congress enacted the statute.” . . . After all, if judges could freely invest old statutory terms with new meanings, we would risk amending legislation outside the “single, finely wrought and exhaustively considered, procedure” the Constitution commands.


This is statutory originalism—the idea that statutes must be interpreted (1) strictly according to their words (textualism) and (2) in light of the common meaning of those words when they were enacted (originalism).

In contrast, an interpretive style strives to divine the underlying purposes of a statute and reinterpret old words to remain faithful to that purpose—what Justice Holmes meant when he said, “A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used.” Towne v. Eisner, 245 U.S. 418, 425 (1918).

Originalism is what Justice Scalia and his coauthor Bryan Garner described in their 2012 book Reading Law: The Interpretation of Legal Texts as “textualism”: “We look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject speculation about both the drafter’s extratextually derived purposes and the desirability of the fair reading’s anticipated consequences.”

Scalia elaborated his method via “canons,” of which three carry particular importance:

  • The Supremacy-of-Text Principle: “The words of a governing test are of paramount concern, and what they convey, in their context, is what the text means.”
  • The Fixed-Meaning Canon: “Words must be given the meaning they had when the text was adopted.”
  • The Ordinary-Meaning Canon: “Words are to be understood in their ordinary, everyday meanings—unless the context indicates that they bear a technical sense.”


The statutory originalism at the center of Henry Schein and New Prime is simply Scalia’s textualism. I prefer the term statutory originalism because everybody—originalists and nonoriginalists alike—agrees on the supremacy-of-text principle and the ordinary-meaning canon; what distinguishes Scalia is the fixed-meaning canon, which tells us whose ordinary meaning counts.

Are We All Originalists Now?

During her 2010 confirmation hearing, Justice Kagan said, “[W]e are all originalists.” She meant that original intent was the starting point for constitutional interpretation: “Sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they tried to do.” Has she (and a clear majority of the Court) come around to the idea that—at least with statutory interpretation—original intent is the ending point as well? Even if that ending point seems senseless or counterproductive? Is original intent now the alpha and omega of statutory interpretation?

The answer is yes. Both New Prime and Henry Schein were unanimous decisions (although Kavanaugh did not participate in New Prime). None of the more liberal justices wrote separately to quarrel with the originalist principles invoked in either opinion. Even Justice Ginsburg’s very short concurrence in New Prime started out by announcing her agreement with statutory originalism: “‘[W]ords generally should be ‘interpreted as taking their ordinary . . . meaning . . . at the time Congress enacted the statute.’ . . . The Court so reaffirms, and I agree. Looking to the period of enactment to gauge statutory meaning fosters fidelity to the ‘regime . . . Congress established.’”

But then Ginsburg turned to the word generally, noting that “Congress . . . may design legislation to govern changing time and circumstances.” How? Her concurrence doesn’t make that clear, only noting that Congress can expressly declare an intent that statutory language by reinterpreted to keep pace with changing circumstances or can step in itself to update a statute. Quoting Justice Breyer’s majority opinion in West v. Gibson, 527 U.S. 212 (1999), she ended her concurrence by concluding that “sometimes, ‘[w]ords in statutes can enlarge or contract their scope as other changes, in law or in the world, require their application to new instances or make old applications anachronistic.’”

West—an employment case—illuminates the fault lines in the seeming unanimity of New Prime. West decided whether the Equal Employment Opportunity Commission (EEOC) was authorized to award compensatory damages against federal agencies under Title VII. In 1972, Congress extended Title VII to federal employees, authorizing the EEOC “to enforce” its protections “through appropriate remedies . . . as will effectuate the policies of this section.” The 1972 amendment specifically authorized hiring, reinstatement, and back pay but did not authorize compensatory damages. It also permitted employees not satisfied with the EEOC’s remedies to sue. In 1991, Congress again amended Title VII to authorize compensatory damages “[i]n an action” brought under Title VII, and granted “any party” to “an action” seeking compensatory damages the right to a jury trial.

Did the 1991 amendment—authorizing “an action” to recover compensatory damages—authorize the EEOC to award them as well? The circuits split on this question; the Court said “yes.” The Court started with the exact opposite of the principle of interpretation adopted in New Prime, noting that the 1972 amendment’s “language . . . does not freeze the scope of the word ‘appropriate’ as of 1972. . . . The meaning of the word ‘appropriate’ permits its scope to expand to include Title VII remedies that were not appropriate before 1991, but in light of legal change are appropriate now.” Because the 1991 amendment permitted an award of compensatory damages in an action, such relief was ipso facto rendered appropriate and within the power of the EEOC.

Justice Kennedy, joined by Justices Rehnquist, Scalia, and Thomas, would have none of this, however. Unconvinced that Congress ever expressed any intention that “appropriate remedies” should “‘expand’ to include remedies that were not available at the time [the language] was adopted,” they concluded that only the courts—and not the EEOC—could award compensatory damages to federal employees under Title VII. Id. at 225.

Two curious points emerge from Ginsburg’s citation of West.

First, there doesn’t seem any way to reconcile the styles of statutory interpretation in New Prime and West. Nor does there seem any clear rationale for treating West’s interpretive style as some exception to New Prime’s. I cannot believe that the 5–4 majority in West would hold up today. Perhaps, notwithstanding her endorsement of statutory originalism, Ginsburg’s concurrence is a concurrence in result only.

Second, Breyer did not join Ginsburg’s New Prime concurrence. It is not clear why. Just five years ago, in NLRB v. Noel Canning, 573 U.S. 513 (2014), the recess appointments case that involved a question of constitutional interpretation, he authored a majority opinion widely seen as a rebuke to originalism. Breyer’s 2005 book Active Liberty: Interpreting Our Democratic Constitution professed to apply the same (nonoriginalist) style of interpretation to both constitutional and statutory questions, but perhaps his views of statutory interpretation have changed since then.

Everything Old Is New Again

New Prime’s wholesale adoption of statutory originalism as an interpretive rule opens up new opportunities for employers to challenge extensions of employment laws into areas unanticipated when the laws were enacted. But don’t get too excited about the opportunities that cases like New Prime present—stare decisis still counts for something. As Scalia wrote in Reading Law, although “[s]tare decisis . . . is not a part of textualism . . . [it] has been part of our law from time immemorial, and we must bow down to it.” I wouldn’t look for the originalist majority on the Court to overturn precedent. Rather, the justices will likely follow Scalia’s proposal that “when a governing precedent deserving of stare decisis effect does not dictate a contrary disposition, judges ought to use proper methods of textual interpretation.”

Even so, there are plenty of employment issues where statutory originalism is likely to have a big impact. The Fair Labor Standards Act—enacted only a decade after the FAA—is an especially fertile ground for such opportunities. Hotly litigated questions over the extension of FAA coverage to student interns and trainees—not considered employees in the 1930s—could be resolved in favor of employers by a statutorily originalist Court.

Another area where statutory originalism might be relevant is the expansion of Title VII’s prohibition on discrimination “because of . . . sex” (enacted in 1964) to encompass sexual orientation and gender identity. In its ordinary meaning at the time Title VII was enacted, sex meant “[t]he property or quality by which organisms are classified according to their reproductive functions . . . either of two divisions, designated male and female, of this classification.” The American Heritage Dictionary of the English Language (1st ed. 1969). At least at that time, sex referred to maleness or femaleness. A male is male, regardless if he desires women or other men; a female is a female, regardless of whether she desires men or other women. When Scalia, writing for a unanimous Court, held that Title VII covered male-on-male sexual harassment in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998), he pointed out that “harassing conduct need not be motivated by sexual desire to support an inference of discrimination based on sex.” It need only be “motivated by general hostility to the presence of” men or women as such “in the workplace.”

How would today’s Court answer the question of whether Title VII prohibited discrimination against homosexuals as such (whether they are gay men, gay women, or something else)? I think statutory originalism would compel it to hold that Title VII did not. Significantly, when the U.S. Court of Appeals for the Seventh Circuit recently held en banc to the contrary in Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017), the majority eschewed originalist principles.


Professor Mitchell N. Berman once wrote that “[o]riginalism [i]s [b]unk.” He might be right. But at least in its application to statutes, it is likely now the prevailing style of statutory interpretation of the Supreme Court. Ignore it at your peril.

Steven B. Katz is a partner at Constangy, Brooks, Smith & Prophete LLP in the Los Angeles, California, office.

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