Is your position more like Justice Gorsuch in Bostock or Justice Alito in dissent?

Florida Governor Ron DeSantis recently appointed Judge Adam Tanenbaum to the state supreme court. This will likely be DeSantis’s final appointment to a Court he has completely reshaped. This seat faced some stiff competition. It was reported in Bloomberg that the Governor was looking for a “bloodthirsty” originalist. I think he got one.

In a speech, Tanenbaum said “I subscribe to the fixation thesis and the constraint principle.” I would wager that most law professors have no clue what those things are. When you put a bloodthirsty originalist on the bench, litigants better be ready.

Yesterday, Tanenbaum had his first oral argument. The case was not particularly controversial. It turned on the meaning of the word “enterprise” in the state RICO statute. Aruging on behalf of Florida was Jason Muehlhoff, the deputy Solicitor General. Muehlhoff is no squish. He clerked for Judge VanDyke and worked at Gibson Dunn in Dallas. So here you have a very conservative judge asking questions of a very conservative lawyer.

Jump ahead to the 9:00 minute mark.

I have taken the liberty of transcribing the exchange:

Justice Adam Tanenbaum: Counselor: Your brief for your approach to the text is someways resembles Justice Gorsuch’s approach in Bostock. Just looking at the text, and ignoring the context in which the statute was enacted. You start by focusing in particular on [the meaning of] “enterprise” and what was going on in 1977. Can you explain, is your position more like Justice Gorsuch in Bostock or Justice Alito in dissent?

Deputy Solicitor General Jason Muehlhoff: It is certainly not Justice Gorsuch your honor. It is more along the lines of what Justice Alito and Justice Kavanaugh had in dissent, and understanding the provisions as they are naturally read. . . . I think it’s safe to say this is how Justices Kavanaugh and Alito would approach it.

Justice Tanenbaum wasn’t done. About ten minutes later, at the 20:30 mark, he returned to Bostock.

Justice Tanenbaum: That’s why I asked, going back to my Bostock question, it seems like you are pushing this with blinders on. You’re just looking at the words themselves in a definition and ignoring the context of the entire statute and what the statute is. RICO is a very particular type of crime and it was well known at the time in the 1970s what was going on and what the federal government and the Florida government was trying to get at. You are focusing on the definition of “enterprise” and look we can go after one individual, unrelated to anyone else that is trying to embark on some sort of criminal endeavor, it is just him. . . .

Muehlhoff: This Court has said time and time again that broad purposes of statement must yield to the clear text….

Justice Tanenbaum: That’s what Gorsuch said too.

Muehlhoff: I think Justice Gorsuch was wildly incorrect, but that was because of the specific text of the statute.

This is a stunning exchange, not because of the briefing from the Florida Supreme Court, but because of how poorly Bostock has been received. I don’t know if there is any decision in recent Supreme Court history that has aged worse than Bostock. As a matter of substance, the Court has walked back the ruling in Mahmoud and Mirabelli, and will walk it back further in Chiles and the Title IX cases. As a matter of doctrine, not a single conservative would hold up Bostock as the proper way of doing textualism. The pirate flag of textualism barely flutters.

At his point, Bostock has become a laughingstock, so much so that a conservative judge asks a conservative litigant to disavow a Supreme Court precedent on how to read statutes. Of course, that ruling is not binding on the Florida Supreme Court. It is a fun academic question whether the Supreme Court can even set a precedent of how to engage in originalism or textualism. (Tara Grove suggests that the Court lacks the power to impose any methodology.) But I couldn’t help but chuckle at this exchange to see how Bostock fares in the real world.