Supreme Court Associate Justice Neil Gorsuch seemed to have a different view on interpreting the text of a law in 2016 than what he expressed in his ruling Monday in Bostock v. Clayton County. That ruling found Title VII of the Civil Rights Act’s prohibition against discrimination based on biological sex also applies to sexual orientation and gender identity. 

In Monday’s ruling, Gorsuch admits that the Supreme Court rules typically on what on the meaning of the text when it was enacted. 

“This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the President. If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people’s representatives. And we would deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations,” he wrote. 

That is correct, but everything he writes after this contradicts what he just wrote.

He then wrote, “Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.” (emphasis mine)

“The employers assert that no one in 1964 or for some time after would have anticipated today’s result. But is that really true?” Gorsuch asked. “Not long after the law’s passage, gay and transgender employees began filing Title VII complaints, so at least some people foresaw this potential application.”

Yes, that is true. There were complaints, and those complaints were denied. As Associate Justice Samuel Alito pointed out in his dissenting opinion, The Equal Employment Opportunity Commission denied them in their 48 years of ruling on Title VII. Before 2017, 30 out of 30 appellate judges saw “sex” as biological sex and nothing more.

History shows Gorsuch to be wrong. 

In 2016, Gorsuch disagreed with what Gorsuch in Comstock v. Clayton County is saying. In an address at Case Western University School of Law, speaking on the legacy of the late Associate Justice Antonin Scalia stated what should be obvious.

He said the “great project” of Scalia’s judicial career was the remind others about the differences between judges and legislators. 

“To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society. That judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be— not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best,” Gorsuch said. (emphasis mine) 

That is absolutely correct. That is the proper role of a judge. Doing that does not mean we will see a judge in a way that is our preferred outcome. Gorsuch reminds of us of that quoting Scalia, “If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.” 

One could say Gorsuch did that and came to a conclusion to which we disagree when you look for judges who will implement judicial philosophies like textualism and originalism instead of an ideology that will happen. 

But, this is not how a textualist approaches interpreting statutes. Gorsuch violated what he said at the beginning of his opinion and what he stated in 2016. He appears to adopt Associate Justice Elena Kagan’s point of view. I almost wonder if she ghostwrote the opinion. 

Robert George, McCormack Professor of Law at Princeton University Law School, wrote a prescient piece in National Review last fall pointed out that when Kagan proposed an eerily similar proposal as a “textualist approach” to what we see in Comstock. 

“In the Title VII cases, Kagan proposes to test for sex discrimination by asking what would happen if an employee’s sex were flipped and all else were held constant. Thus, she would say, a company that fires Riley for being a woman who dates women is discriminating based on sex, because it would have kept Riley on if she were a man who dates women,” he writes.

“Clever, right? But the argument is fallacious. If it seems like a knockdown, that’s only because the objectionable moves were made offstage and then smuggled into the argument’s setup, diverting our gaze from the only fair reading of Title VII,” George argues.

“The whole appeal of Kagan’s argument is that it purports to flow directly from the text (“discriminate”), without any contestable moves along the way. Once you see that this is false, the argument loses all appeal, and its proponents have to fall back on dubious premises that cut against the only reasonable reading of the text. As we’ll see, the “textual” part of Kagan’s “textualist” case is doing no work whatsoever,” he added.

George later points out that Kagan used a similar tactic in Masterpiece Cakeshop v. Colorado Civil Rights Commission, and Gorsuch dismantled it. 

What happened? He rejected what George calls “counterfeit textualism” in Masterpiece, but adopts it in Bostock

Yet another case of Gorsuch v. Gorsuch. 

HT: Albert Mohler for the link to Gorsuch’s 2016 speech.

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