He is better known for his dissenting opinions than for his majority opinions, and it is generally not the case that the most junior member of the majority takes the initiative in writing of what will be one of the most famous cases in the mandate.
But those who have seen oral argument in the cases now collectively called Bostock v. Clayton County knew that Gorsuch seemed the key.
Stanford Law Professor Pamela S. Karlan and ACLU Legal Director David Cole, representing gay workers and transgender plaintiff Aimee Stephens, respectively, dismissed a call for equity or equality in favor of the argument that the general text of Title VII of the Civil Rights Act of 1964 already protected their clients.
During the discussion, Gorsuch seemed to accept the point of view. “Suppose for the moment that I am with you on the textual evidence. It’s close, okay? Gorsuch said to Cole.
But at the end of the day, he asked, a judge “should he take into consideration the massive social upheaval that would be involved in such a decision, and the possibility that – that Congress had not thought of it “
Cole replied, “He is not asking you to answer a policy question that would be more appropriate for Congress, but asking you to interpret the statute as it is written. “
What has not been said is that Gorsuch himself advised such an approach in a book he published last summer, “A Republic, if you can keep it.” In it, he argued in favor of “textualism,” which means that the words of the law in question take precedence over the intentions of legislators or the consequences of the court decision.
“The text of the law and only the text becomes law,” writes Gorsuch in the book. “Not the unspoken intentions of a legislator, not the nuggets buried in legislative history, and certainly not the political preferences of a judge. “
In Monday’s decision, Gorsuch joined the four court liberals – Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan – as well as Roberts, who had not shown his hand in argument and was dissented five years ago when the court ruled that the Constitution protected the right of same-sex couples to marry.
But during the pleadings in this case, Obergefell c. Hodges, Roberts suggested that the result might be different in a case of statutory interpretation. “If Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t,” Roberts told one of the lawyers. “And the difference is based on their different gender. Why is it not just a matter of gender discrimination? ”
This was essentially the opinion that Gorsuch wrote in Bostockand Roberts joined.
“It is impossible to discriminate against someone for being gay or transgender without discriminating against that person based on their gender,” wrote Gorsuch. An example: if an employer “dismisses the male employee for no other reason than the fact that he is attracted to men, the employer discriminates against him for the traits or actions that he tolerates in his colleague”.
Gorsuch recognized that members of Congress in 1964 did not intend to protect LGBTQ people, but what mattered, he said, was the law they wrote.
“Only the written word is the law, and everyone has the right to profit. “
This result was exactly what some Conservatives had feared since October’s arguments in business. The Wall Street Journal’s conservative editorial board last fall warned Gorsuch and Roberts that they were being cheated and about to abuse textualism.
Earlier this year, the conservative columnist Josh Hammer Tweeted: “There is a rumor circulating rapidly in conservative legal circles that Gorsuch is going to side with the Liberals and read the transgender in Title VII. I have been a longtime skeptic at Gorsuch, but it would certainly be unprecedented betrayal. Hopefully this is not true. ”
The decision separated Gorsuch from two judges with whom he often rubs shoulders – Thomas and Samuel A. Alito Jr. – and his fellow Trump lawyer, Brett M. Kavanaugh.
“Obviously there will be close cases,” Gorsuch wrote in his book. “And in these specific cases, we can expect bona fide lawyers and judges to vigorously debate what traditional law-making tools suggest about the meaning of a particular text.”
In his dissidence, which was joined by Thomas, Alito called Gorsuch’s interpretation “grotesque.”
“It is difficult to remember a more brazen abuse of our power to interpret laws,” he added.
Justice Antonin Scalia, modern justice that the most conservative members of the court seem to be trying to imitate, was a defender of textualism, and his views were quoted by Gorsuch. Alito told him not to claim Scalia’s coat.
“The court’s opinion is like a pirate ship,” Alito wrote. “He sails under a textualist flag, but what he really represents is a theory of statutory interpretation that Justice Scalia has excelled – the theory that the courts should” update “the old laws so that they better reflect the current values of the company. “
Kavanaugh was less vitriolic, but said that Gorsuch had abused textualism.
“There is no serious debate over the fundamental interpretative principle that the courts adhere to the ordinary, not the literal, sense when interpreting laws,” wrote Kavanaugh, who often disagrees with Gorsuch. “As Justice Scalia explained,” the good textualist is not a literalist. “”
Immediate reactions to key Supreme Court decisions are often out of the ordinary, and then revised when the next round of opinion arrives.
Republican Senator Josh Hawley of Missouri, a former Roberts employee, said on Tuesday that the move “represents the end of the conservative legal movement.” Harvard law professor Noah Feldman wrote in a Bloomberg opinion article that the landmark ruling “will mean that the Liberals must treat Gorsuch as serious justice, not just as a servant of Trump.”
It was only the beginning of the main court decisions regarding the term: the fate of the deferred action plan for child arrivals, abortion restrictions, religious freedom cases and President Trump’s legal battle to keep his Congressional financial records and prosecutors waiting.
The next court decisions will be made public on Thursday.