Will Gorsuch abandon his judicial philosophy to get what he wants?
As gay and transgender Ameras male at birth — is discriminaicy results”? icans march inexorably toward tion on the basis of sex. Now, he’s asking about conequality, Justice Neil Gorsuch is How can sexual orientation gressional intent and policy reon the horns of a dilemma: Does not be about sex? sults. That’s a good bit of intelhe jettison his judicial philosoGorsuch acknowledged as lectual chicanery. phy to slow their much during Tuesday’s arguGorsuch invited Cole to conprogress? ment, telling David Cole, lawyer template a “drastic” change to
Gorsuch, Presifor the transgender plaintiff (the gender-neutral bathrooms and dent Trump’s first cases involve both transgender dress codes (neither of which was appointee to the and gay discrimination), to “asat issue in Tuesday’s cases). When Supreme Court, sume for the moment I’m with Cole said available evidence so far literally wrote the you on the textual evidence. It’s finds “no upheaval,” Gorsuch shot book (published close, OK? We’re not talking back: “Did you want to address last month) on juabout extra-textual stuff.” [the] arguments or not?” dicial “textualBut then the justice pivoted “I thought I was,” Cole said. ism,” the philosin a decidedly non-textual direcHe was. But Gorsuch didn’t ophy that says judges must rule tion. He asked whether judges want to hear it. Twenty- one on the plain meaning of the law, should “take into consideration states and the District of Columnot legislative intent nor desired the massive social upheaval that bia already forbid LGBTQ disoutcomes. would be entailed in such a decrimination. Where is Gorsuch’s
So he’s in a corner now as the cision, and the possibility that imagined cataclysm? high court decides whether to Congress didn’t think about it.” And surely Gorsuch knows his bless employment discriminaWhat? other non-textualist argument, tion against LGBTQ Americans. This from the guy who just that the matter is a “legislative Title VII of the 1964 Civil Rights wrote that judges shouldn’t “do rather than a judicial function,” Act prohibits discrimination on anything other than interpret is a dodge. Has he met Conthe basis of sex, and if you set statutes according to the ordigress? It can’t pass a resolution aside cultural views on homonary meaning of their terms,” at 8 a.m. proclaiming it morning.sexuality55yearsagoandlookwhoridiculedattemptstodionly at the law itself, it’s clear: vine legislative intent from the ther conservatives — Chief Firing somebody for not follow“flotsam” of history, and who deJustice John Roberts and Justice ing traditional sex stereotypes rided “consequentialists” who Brett Kavanaugh — kept their — say, a man who dates a man “seek to select the outcome calcards close, while a fiery Justice or a woman who was identified culated to produce optimal pol- Ruth Bader Ginsburg schooled Trump administration solicitor general Noel Francisco on case law. “I guess I’m thinking of the wrong case,” he said when Ginsburg corrected him. When Francisco counseled against interpreting the law to protect gay people, she reminded him: “No one ever thought sexual harassment was encompassed by discrimination on the basis of sex back in ‘64.”
Justice Samuel Alito floated the strained hypothetical of an employer who can’t discern an employee’s gender. “So this is ‘Saturday Night Live’ Pat?” asked Pamela S. Karlan, lawyer for the gay plaintiffs.
“I’m not familiar with that,” said Alito.
Gorsuch was in no mood for merriment. He competed with Justice Sonia Sotomayor for the floor, interrupted an exchange between Ginsburg and the solicitor general, and retorted to Justice Elena Kagan when she broke in on his questioning of Bursch.
“That’s helpful,” he told her, “but I’m also curious what you have to say, Mr. Bursch.”
When Karlan offered a hypothetical about requiring women arguing before the court to wear “Hooters outfits,” Gorsuch belittled the “absurd example.” When she elaborated, he interjected: “That’s not what I’m getting at, and you know what I’m getting at.”
He pressed her testily and at length on bathroom use by transgender people, leading her to remind him her clients are gay, not transgender.
Gorsuch could be a problem for those seeking to preserve discrimination. That might be why one lawyer for the cause, Jeffrey Harris, struggled when Gorsuch pointed out that the “language of the statute” broadly defines “the causes of discrimination.”
Harris rambled, then lost his train of thought: “I’m sorry, remind me of the question one more time?”
The question is whether Gorsuch will interpret the text of the law the way he claims to — or devise an excuse to produce his desired result.