Dana Milbank: Will Gorsuch abandon his judicial philosophy to get what he wants?
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Dana Milbank: Will Gorsuch abandon his judicial philosophy to get what he wants?

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Dana Milbank July 2019

Dana Milbank

WASHINGTON — As gay and transgender Americans march inexorably toward equality, Justice Neil Gorsuch is on the horns of a dilemma: Does he jettison his judicial philosophy to slow their progress?

Gorsuch, President Trump's first appointee to the Supreme Court, literally wrote the book (published last month) on judicial "textualism," the philosophy that says judges must rule on the plain meaning of the law, not legislative intent nor desired outcomes.

So he's in a corner now as the high court decides whether to bless employment discrimination against LGBTQ Americans. Title VII of the 1964 Civil Rights Act prohibits discrimination on the basis of sex, and if you set aside cultural views on homosexuality 55 years ago and look only at the law itself, it's clear: Firing somebody for not following traditional sex stereotypes — say, a man who dates a man or a woman who was identified as male at birth — is discrimination on the basis of sex. How can sexual orientation not be about sex?

Gorsuch acknowledged as much during Tuesday's argument, telling David Cole, lawyer for the transgender plaintiff (the cases involve both transgender and gay discrimination), to "assume for the moment I'm with you on the textual evidence. It's close, OK? We're not talking about extra-textual stuff."

But then the justice pivoted in a decidedly nontextual direction. He asked whether judges should "take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that Congress didn't think about it."

What? This from the guy who just wrote that judges shouldn't "do anything other than interpret statutes according to the ordinary meaning of their terms," who ridiculed attempts to divine legislative intent from the "flotsam" of history, and who derided "consequentialists" who "seek to select the outcome calculated to produce optimal policy results"?

Now, he's asking about congressional intent and policy results. That's a good bit of intellectual chicanery.

Gorsuch invited Cole to contemplate a "drastic" change to gender-neutral bathrooms and dress codes (neither of which was at issue in Tuesday's cases). When Cole said available evidence so far finds "no upheaval," Gorsuch shot back: "Did you want to address [the] arguments or not?"

"I thought I was," Cole said.

He was. But Gorsuch didn't want to hear it. Twenty-one states and the District of Columbia already forbid LGBTQ discrimination. Where is Gorsuch's imagined cataclysm?

And surely Gorsuch knows his other nontextualist argument, that the matter is a "legislative rather than a judicial function," is a dodge. Has he met Congress? It can't pass a resolution at 8 a.m. proclaiming it morning.

Other conservatives — Chief Justice John Roberts and Justice Brett Kavanaugh — kept their cards close, while a fiery Justice 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.

Dana Milbank is a columnist for The Washington Post. Follow him on Twitter, @Milbank.

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