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The Two Gorsuches


Strict Textualist (TM) Neil Gorsuch was apparently replaced in mid-oral argument today by another justice named “Neil Gorsuch”:

The cases (Bostock v. Clayton County; Altitude Express v. Zarda; and Harris Funeral Homes v. EEOC) present the question whether discrimination against individuals who are gay, lesbian, bisexual, transgender, or queer constitutes discrimination on the basis of such individual’s sex in violation of Title VII.

In the oral argument, Justice Gorsuch explained why it is conceptually, analytically, and linguistically discrimination on the basis of sex to fire a man for dating a man (rather than a woman), or to fire a person who identifies as female despite being assigned male at birth.


And then some other guy named Neil Gorsuch started asking questions in Harris Homes. From the Harris Homes transcript:

JUSTICE GORSUCH: — I’m with you on the textual evidence. It’s close, okay? We’re not talking about extra-textual stuff. We’re — we’re talking about the text. It’s close. The judge finds it very close. At the end of the day, should he or she take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that — that Congress didn’t think about it — and that — that is more effective — more appropriate a legislative rather than a judicial function?

Ed: Whoa there, imposter Justice Gorsuch! I’m pretty sure sounds like someone “yelling at you” about the “consequences” (massive social upheaval) of your decision and asking you to “make up” an exception to textualism (where a judge thinks or is told there will be “massive social upheaval” or that “Congress didn’t think about it”). But the rules are the rules—the text means what the text says, even if you think Congress didn’t think about the meaning of its words or particular applications of them, and even if people are “yelling at you” about “social upheaval.”

In brief: There is no social upheaval exception to textualism.* As Justice Gorsuch said elsewhere in Harris Homes, “the question is a matter of the judicial role.” Indeed, it is.

The rules are either the rules, or they’re not. We’ll see whether Justice Gorsuch follows them.

It is possible that Gorsuch will vote with the liberals in this case. But particularly given that the “massive social upheaval” he is citing is both mostly imaginary and would be represents bizarre reactionary assumptions, it seems much more likely that he’ll reserve his Strict Textualism for cases where, say, he sides with a company that says an employee had to freeze himself to death.

Having said that, like Thomas Gorsuch does seem to have some genuine interest in grand legal theories, and while such theories basically never constrain justices when they have strong preferences this can matter in some more marginal cases (like Louisiana permitting non-unanimous guilty verdicts.) Then there are the two Sam Alitos. Alito #1:

Textualism, which Alito described as now occupying the “pole position” among interpretive approaches, constrains judges by limiting their ability to stray from the plain meaning of a statute or section of the Constitution. When judges use balancing tests rather than hewing to the text of a legal provision, Alito observed derisively, the “balance always just comes out the way the judge would like it to.”

Alito #2:

Justice Samuel Alito spent much of the morning harping on the fact that Congress did not foresee these results in 1964. He asked why the court should be “deciding a major policy question that was not in Congress’ mind in 1964.” And he accused Karlan of “trying to change the meaning of what Congress understood ‘sex’ to mean” when it passed Title VII. Chief Justice John Roberts, meanwhile, fixated on trans bathroom use and fretted about exemptions for religious organizations. Both Alito and Roberts were more focused on congressional intent and the consequences of LGBTQ equality than the text of Title VII. Justice Clarence Thomas was silent as usual, and Justice Brett Kavanaugh said virtually nothing.

The only “pole position” in Alito’s interpretive approach is “the most recent platform of the Texas Republican Party.”

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