It is a watershed moment from an unlikely author that means gay, lesbian and transgender workers are protected by federal by civil rights law. It is a stunning defeat for judicial conservatives who worked to ensure Gorsuch’s nomination and Republicans, including Donald Trump, who stymied President Barack Obama’s nominee for the Supreme Court, liberal Merrick Garland in 2016.
The ruling puts Gorsuch in the history books.
At the same time, it will infuriate those who worked on his confirmation, confident that he was the right candidate to fill the shoes of Scalia.
Just after the opinion was released, Carrie Severino of the conservative Judicial Crisis Network blasted Gorsuch. She said he had “bungled” the decision and Scalia would be disappointed.
“This was not judging, this was legislating — a brute force attack on our constitutional system,” Severino, who also clerked for Justice Clarence Thomas, said.
That point was not lost on Justice Samuel Alito in his dissent that was joined by Thomas.
“There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive,” Alito wrote. Repeatedly, in his dissent, Alito quoted past writings of Scalia.
“The Court’s opinion is like a pirate ship,” Alito said. “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. ”
Joining Gorsuch were Chief Justice John Roberts, and the four liberals on the bench, Justices Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor and Stephen Breyer. The liberals chose not to write concurring opinions, allowing Gorsuch’s ringing endorsement of LGBTQ rights and sound rejection of Trump administration arguments, to stand alone.
The vacancy that helped Trump win the White House
When Scalia died in February 2016, it threw the presidential election into turmoil. Senate Majority Leader Mitch McConnell, a Republican, declared he would block any Obama nominee, who turned out to be Garland.
Trump used the vacancy as a key motivator to his base and his eventual victory, and has continued to tout his nomination of Gorsuch and later Brett Kavanaugh — and nearly 200 lower court judges — as legacy achievements of his presidency.
When Trump introduced Gorsuch to the country in January 2017, under the glittering lights of the East Room of the White House, he said he was fulfilling a pledge to “find the very best judge in the country for the Supreme Court.”
“I promised,” the President said, “to select someone who respects our laws” and someone who will “interpret them as written.” Trump was nodding to the fact that Scalia and Gorsuch both considered themselves “textualists” — interpreting the laws as they are written, relying upon the text and the structure of the statute instead of considering what Congress might have meant, or any legislative history associated with the law.
Gorsuch’s nomination would not be easy as he would have to face the fury of liberals, still incandescent that Republicans had refused to hold hearings for Garland.
At the White House that night, with Scalia’s widow, Maureen, in the audience, Gorsuch called Scalia a “lion of the law” and he reiterated something he would repeat over the next weeks and months: “It is the role of judges to apply, not alter, the work of the people’s representatives.”
The White House has yet to comment on Monday’s ruling.
On the bench
After taking the bench, Gorsuch wasted no time delivering for conservatives. He voted in favor of Trump’s travel ban, and he would have allowed a citizenship question to be added to the 2020 census.
He was in the majority when the Court said it would stay out of disputes over when politicians go too far in drawing district lines for partisan gain. In one particular case, he sided with the court’s liberals in favor of an immigrant, holding that the law used against him was impermissibly vague. There, though, Gorsuch was following the lead of Scalia, who also railed against vagueness.
In November 2017, before a crowd of conservatives attending the annual gala of the Federalist Society, Gorsuch payed homage to Scalia’s work to revitalize how statutory and constitutional texts should be interpreted. Scalia believed that the Constitution should be interpreted according to its original public meaning. He also believed that a judge should start with the text when analyzing a law, and not look to legislative history or statements related to the law’s purpose.
“Tonight, I can report that a person can be both a publicly committed originalist and textualist and can be confirmed to the Supreme Court,” Gorsuch told the delighted black tie crowd. In return, they roared their approval.
For liberals, Gorsuch represented a sure signal of the court’s coming rightward tilt. In an interview with CNN last September, on the eve of the current blockbuster term, Gorsuch was asked specifically about the LGBTQ case as well as a case concerning immigration and the fear of liberals concerning the direction of the court.
In his response, Gorsuch explained how he tackled divisive cases.
“I think all a judge can do is fulfill his or her oath as best they can,” he said, and added “politics, your personal points of view — you leave that over there.”
“When you put on the robe, ” he continued, “you put that stuff aside and you open your mind, and you listen. And that’s all a judge can ever promise. He can’t promise outcomes- can only promise their best efforts in the process.”
When the court heard oral arguments in the LGBT cases in October, Gorsuch hinted at the direction he was headed.
“When a case is really close, really close, on the textual evidence, I’m with you on textual evidence,” he told David Cole, a lawyer representing a transgender plaintiff. “It’s close.”
The Kagan factor
Kagan told an audience at Harvard in 2015 that Scalia would go down in history as one of the most “important, historic figures of the court. She said the primary reason was that Scalia reshaped the way judges approached statutory interpretation by insisting upon a sharp focus on the words on the page.
She noted that the “textualism” approach could lead to different outcomes, but that Scalia insisted that the analysis start –at the very least –with the text and structure of the law and not something like the intent of Congress or committee reports and drafting history .
“We are all textualists now,” Kagan declared.
She said the text of Title VII that bars discrimination “because of” sex seemed crystal clear.
“Did you discriminate against somebody,” she asked rhetorically, “because of sex?”
“Yes you did,” she said, answering her own question. “Because you fired the person because this was a man who loved other men.”
Francisco, a former Scalia clerk, fired back. He said that it was his side that was making a “straightforward textual argument.”
For Francisco it was simple, “the law distinguishes between between sex and sexual orientation.”
“Sex means whether you’re male or female, not whether you’re gay or straight,” he said.
Trump’s other nominee, Justice Brett Kavanaugh, dissented from Gorsuch’s majority opinion
While “policy arguments” to amend the law “are very weighty, Kavanaugh wrote, and while he agreed that “gay and lesbian Americans cannot be treated as social outcasts or as inferior in dignity and worth” he could not side with Gorsuch’s interpretation
“We are judges, not Members of Congress,” Kavanaugh wrote, adding “our role is not to make or amend the law.”
It is likely that Roberts, the most senior member of the court in the majority, assigned Gorsuch the opinion. Roberts, like other justices often says the press makes too much of the importance of 5-4 opinions. Indeed, Monday’s opinion comes as the court is considering abortion, DACA, religious liberty, and Trump’s bid to shield his financial documents. Court watchers will be waiting to see how the court’s usual bedfellows align.
As for Gorsuch, back in September he told CNN he rejects talk of “hard right turns” on the bench.
“I just don’t view judges that way, I reject that idea of how judges operate,” he said.
He pointed out that about 40% of the courts cases are unanimous.
“You have nine very independent people approaching these cases as best they can,” Gorusch said.