July 14, 2020
I, together with colleagues, have already commented several times on the outrageous opinion authored by Supreme Court Justice Neil Gorsuch in the case of Bostock v. Clayton County. (See an initial response co-authored by Mary Beth Waddell, another here, and separate pieces analyzing the problems with the decision regarding sexual orientation and gender identity.)
Gorsuch, together with Chief Justice John Roberts and the Court’s four most liberal justices (Ginsburg, Breyer, Sotomayor, and Kagan), ruled that the prohibition on discrimination “because of . . . sex” found in the Civil Rights Act of 1964 extends also to discrimination based on “sexual orientation” and “gender identity.” The decision leapfrogged the democratic process by granting to homosexual and transgender persons special protections not granted by a majority of states nor by Congress, despite proposals to do so going back decades.
The three dissenting justices produced two dissenting opinions. Justice Samuel Alito wrote one with which Justice Clarence Thomas joined, while Justice Brett Kavanaugh wrote separately. They did a thorough job of dismantling Justice Gorsuch’s astonishing claim that he was merely interpreting the plain language of the 1964 statute in granting this sweeping victory to the LGBT movement. Between them, the 82 pages of dissent were two and a half times as long as the 33-page Gorsuch opinion.
But what I found in some ways even more interesting was what the four liberals who concurred with Gorsuch said.
Not one of the Court’s four most liberal justices wrote a single word in concurrence. None saw fit to wax eloquent about what the decision would mean for Americans who identify as LGBT—ironically, only the two dissenters did that. Justice Alito wrote:
The updating desire to which the Court succumbs no doubt arises from humane and generous impulses. Today, many Americans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves.
Justice Kavanaugh went even further, implying that if he were a legislator, he would have voted for a bill to do what the Bostock decision did:
[I]t is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.
Yet the four liberal justices, Ginsburg, Breyer, Sotomayor, and Kagan, wrote not a single word.
In my opinion, there is a profound cynicism in that. The silence of the liberals confirms, more eloquently than anything they could say, the chief criticism of their philosophy. To them, only the result matters, not the reasoning.
The exact same thing happened five years ago in the Supreme Court’s last “landmark” decision on LGBT rights—Obergefell v. Hodges, in which the Court declared unconstitutional state laws defining marriage as the union of one man and one woman. In that 5-4 decision, the Court’s “swing vote,” Anthony Kennedy, wrote a nebulous opinion declaring, “The Constitution promises liberty to all . . . to define and express their identity.” All four of the dissenting justices wrote separate opinions detailing their objections; but not one of the liberals wrote a concurring opinion.
A few days later, a writer in the liberal New Republic hit upon why, pointing out that Kennedy’s “opinion in Obergefell is, logically speaking, kind of a disaster.” The writer, Brian Beutler, believed that “his ultimate holding was the correct one. But the price of admission for Court’s four liberals was to join a muddled, unconvincing opinion.”
Beutler seemed to shrug and say there was no other choice:
But as long as Kennedy is the Court’s “swing” justice, he will frequently be the liberal justices’ best hope for good outcomes, and they will feel compelled to defer to him, even if he’s unable to marshal arguments that stand the test of time.
Justice Kennedy has now retired—but in Bostock, it was Justice Neil Gorsuch who did the liberals’ dirty work for them.
Justice Gorsuch’s Bostock opinion was of a completely different style from Kennedy’s in Obergefell. Gorsuch claimed to be strictly applying the principles of “textualism,” a judicial philosophy most closely associated with the late Justice Antonin Scalia. According to Gorsuch, his decision “follows ineluctably from the statutory text.”
Of course, Justice Samuel Alito demolished this claim in his dissent, writing:
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.
In any case, the Supreme Court’s four most liberal justices are not “textualists.” A writer for Slate, Richard L. Hasen, expressed the liberal contempt for “textualism” and its sibling “originalism” in 2018, decrying the “bankruptcy” of “a kind of formalism which resuscitates the moribund idea that judges do not make law in part through value judgments, but instead find law through neutral principles.” (The Constitution, I guess, is “moribund”—either dying or obsolescent.)
However, Hasen noted, “liberal lawyers trying to get progressive results at the Supreme Court have already begun trying to pick off conservative justices through a calculated embrace of the theories.” In fact, he calls this “the model for what liberal lawyers are going to need to do,” noting that “because at least some of the [conservative] justices actually believe they are applying neutral principles . . . , they can be persuaded to vote against conservative positions . . .”
This approach seems to have worked in the Bostock case, “picking off” both Justice Gorsuch and Chief Justice John Roberts.
The complicity of the four liberal justices in this cynical strategy is demonstrated by their silence.