June 16, 2020

Gorsuch’s Judicial Activism

Alito says a fig leaf of textualism doesn’t mean the Court didn’t just legislate from the bench.

In a 6-3 ruling Monday, the Supreme Court discovered that a law written in 1964 covers the libertine cultural sensibilities of 2020. Don’t take our word for it. “There is only one word for what the Court has done today: legislation,” wrote Justice Samuel Alito in his blistering dissent in Bostock v. Clayton County. “The question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not.” In fact, Alito noted, Congress has for decades conspicuously and repeatedly declined to add “sexual orientation” or “gender identity” to Title VII of the Civil Rights Act. Thus, he concludes, “A more brazen abuse of our authority to interpret statutes is hard to recall.”

Nevertheless, the majority opinion, written by Justice Neil Gorsuch, hides behind a fig leaf of textualism to declare that Title VII suddenly protects homosexuals and so-called “transgender” individuals under language that prohibits discrimination based on race, color, religion, national origin, and sex.

“Ours is a society of written laws,” wrote Gorsuch. “Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. 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. 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.”

Except that it was not a necessary consequence of the language written in 1964, when the pseudoscience of “transgenderism” had not yet reared its ugly head. With the exception of religion, the Civil Rights Act language covered immutable characteristics. Biological sex is immutable; it is not a behavioral preference or an option based on how you feel today. Indeed, at the core of the “transgender” argument is the contention that biological sex is not immutable but malleable — with or without surgical mutilation of one’s body. In one of the cases before the Court, a man was hired by a funeral home only to decide later that he is a she. His decision to behave and dress as a female caused distress to grieving families using that funeral home, so he was fired. Yet Gorsuch insists that anti-discrimination law protects that man’s gender-dysphoric decision.

In the other two cases, employers fired workers for engaging in behavior the companies found objectionable. Gorsuch insists that a law protecting immutable characteristics forces an employer to retain employees who make behavioral decisions. Whether their firing was justifiable is debatable. Certainly, all people deserve to be treated with dignity, and the overwhelming tide of American opinion is certainly in the plaintiffs’ favor, as noted by Justice Brett Kavanaugh in a separate dissent. “Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law,” Kavanaugh wrote, “and [they] can take pride in today’s result.”

The biggest problem is how that result was achieved. It was not through textualism or proper respect for the constitutional separation of powers. It was through brazen judicial activism. Alito nailed it as such, writing, “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 [Antonin] Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. 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. … If the Court finds it appropriate to adopt this theory, it should own up to what it is doing.”

If courts can change laws based on future understanding and redefinition of words, how can Congress pass meaningful legislation? In fact, Congress can choose not to pass legislation only to see the courts usurp its Article I power and do it later anyway.

It’s also not difficult to foresee yet another front opening up in the battle for religious liberty, because the Court’s convoluted rewrite of the Civil Rights Act actually pits the now-broad and catch-all interpretation of “sex” against religion. That’s a terrible shame, doubly painful because it was perpetrated at the hands of one of President Donald Trump’s highly touted Supreme Court appointments.

Update 6/17: Way back in 2018, Gorsuch himself blasted the kind of reasoning Gorsuch employed in 2020. In Wisconsin Central Ltd. v. U.S., Gorsuch wrote, “Written laws are meant to be understood and lived by. If a fog of uncertainty surrounded them, if their meaning could shift with the latest judicial whim, the point of reducing them to writing would be lost. That is why it’s a ‘fundamental canon of statutory construction’ that words generally should be ‘interpreted as taking their ordinary, contemporary, common meaning … at the time Congress enacted the statute.’” (Emphasis added.)

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