Gorsuch draws surprise, anger with LGBT decision

Neil Gorsuch, widely considered one of the more conservative justices on the Supreme Court, stunned observers and drew enmity from right-wing commenters after he authored Monday’s landmark decision guaranteeing LGBT people protection from workplace discrimination.

Gorsuch wrote in the 6-3 decision that the prohibition against discrimination on the basis of “sex” in Title VII of the 1964 Civil Rights Act also applies to gay and transgender employees.

“In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee,” Gorsuch wrote. “We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”

His 33-page opinion prompted swift rebukes from social conservatives who expected the Trump appointee to be a reliable ally on the high court.

“All those evangelicals who sided with Trump in 2016 to protect them from the cultural currents, just found their excuse to stay home in 2020 thank to Trump’s Supreme Court picks,” Erick Erickson, a conservative radio host and blogger, wrote on Twitter.

Carrie Severino, president of the right-wing Judicial Crisis Network, tweeted: “Justice Scalia would be disappointed that his successor has bungled textualism so badly today, for the sake of appealing to college campuses and editorial boards. This was not judging, this was legislating—a brute force attack on our constitutional system.”

President Trump said Monday the White House would “live” with the Supreme Court ruling.

“I’ve read the decision, and some people were surprised,” Trump said. “But they’ve ruled and we live with their decision.”

While Gorsuch was not the only conservative in the 6-3 majority — he was joined by Chief Justice John Roberts, a George W. Bush appointee who dissented against the court’s 2015 decision legalizing gay marriage — some see his stance in the LGBT case as a significant departure from his reputation as a staunch conservative jurist.

“I was quite surprised to see how the Court ruled in this case,” Katharine Franke, a law professor at Columbia University, told The Hill. “The fact that two of the more conservative members of the Supreme Court joined in the decision reaching this result today signals a tipping point in securing full equality for LGBT people.”

“Quite clearly, this ruling will have implications beyond the workplace, and will include rights to equality for LGBT people in healthcare, housing, public accommodations, foster care, and other important settings,” she added.

Despite his conservative bona fides, Gorsuch signaled early on in the case that he was on the fence regarding the arguments of three employers who had fired workers for being gay or transgender. The employers, who were backed by the Trump administration, argued that the 1964 civil rights law was not intended to protect gay and transgender people from discrimination.

During oral arguments in October, Gorsuch said the question at the heart of the cases was “really close, really close,” but he also wondered aloud whether siding with LGBT workers would lead to “massive social upheaval.”

Gorsuch’s written opinion gives ample treatment to his interpretative method, an approach known as textualism, which was popularized by the late Justice Antonin Scalia, Gorsuch’s predecessor on the bench.

The judicial philosophy puts a premium on the express written terms of a law. It seeks to wall off other influences — like the congressional debate that surrounded the law at the time of its passage, or the potential policy implications of a judge ruling a particular way — to examine the legal language in isolation.

“When the ex­press terms of a statute give us one answer and extratex­tual considerations suggest another, it’s no contest,” Gorsuch wrote Monday. “Only the written word is the law, and all persons are entitled to its benefit.”

Proponents of textualism say it offers a principled contrast to methods of judging that are oriented toward producing a desired result. But the approach is often criticized as overly mechanical, bloodless and susceptible to strained interpretations.

Robert Tsai, a law professor at American University, celebrated Monday’s ruling, saying it advances the cause of equality, but added that Gorsuch’s reasoning highlighted the flaws of textualism.

“His yeoman efforts undermine textualism’s pretensions — which is that words have objective, fixed, and widely understood meanings,” said Tsai, who described Gorsuch’s opinion as “painstaking.” “In other words, he has to work very hard to convince us the average person would have understood in 1964 that the law outlawed discrimination against sexual minorities.”

Gorsuch was also not spared from a blistering dissent by fellow conservative Justice Samuel Alito.

“The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpreta­tion championed by our late colleague Justice Scalia, but no one should be fooled,” Alito wrote in a dissent.

“The Court’s opinion is like a pirate ship,” he continued. “It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Jus­tice Scalia excoriated — the theory that courts should ‘update’ old statutes so that they better reflect the current val­ues of society.”

Legal experts said the textualist approach can rankle conservatives who are more concerned with policy outcomes than the consistency of judicial methods.

“Those with principled conservative approaches to law should be pleased, (but) those whose conservatism pertains principally to social policy and not law will be outraged,” said Mary Anne Case, a law professor at the University of Chicago. The latter, she said, “are merely results oriented, and will blithely abandon all their announced legal principles to achieve desired results.”

While Gorsuch’s opinion in the LGBT case may be the most prominent of his career so far, it’s not the first time he has broken with conservatives on the bench. Gorsuch, who joined the court in 2017, has already developed an idiosyncratic approach from the bench.

During the 2018-2019 term, he sided with the four liberal justices in 5-4 decisions more often than any of his conservative colleagues, yet the justice he agreed with most often was Clarence Thomas, arguably the most conservative member of the court, according to an analysis by SCOTUSblog.

And while Gorsuch sided with LGBT advocates on Monday, he left the door open for employers to make faith-based challenges to the court’s ruling on Title VII protections.

“So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way,” he wrote.

Franke, the Columbia University professor, predicted that even with Monday’s landmark decision, the court will continue on its rightward course as it prepares to release a number of decisions in high-stakes cases by the end of the month.

“So, despite the huge victory today for LGBTQ rights, this remains a very conservative Court and I expect that the right will be consoled by other decisions issued before the end of the term on abortion rights, DACA, and other hot button issues,” Franke said.