I once heard Jonah Goldberg talk about a book in which multiple conservative and multiple liberal authors were asked to write whatever they wanted to about politics and political theory. As Goldberg told the story (or at least as I remember it), the conservative authors collectively presented an array of theoretical musings (libertarian, social conservative, natural law based, etc.). The liberal authors all wrote about how Democrats could win the next election.
The Supreme Court is little bit like that. The liberal Justices march basically in lockstep towards whatever result serves liberalism. The conservative Justices seem less single-minded. Most have quirks or hobby horses that cause them, on occasion, to reach unexpected results.
I don’t say “quirks” and “hobby horses” in a negative sense. The jurisprudence of some of these Justices has much to recommend it. But it can cause them, in a given case, to reach results that many conservatives disapprove of.
Chief Justice Roberts at times seems influenced by a desire to guide the Court through tough political waters. Justice Thomas is insistent on getting back to the original Constitution and has considerably less respect for precedent than the other Justices do.
Justice Gorsuch is a textualist. I don’t know yet what Justice Kavanaugh is, but during his first year on the Court it looked like, having gone through a brutal confirmation process, he wanted to “lay low.”
The oral argument last week in cases considering whether Title VII of the Civil Rights Act protects gays-lesbians and transgender individuals was consistent, I think, with my point about the Supreme Court. There was no doubt that the four liberal Justices will vote to extend Title VII protection to the LGBT community.
Most of the drama centers around Justice Gorsuch and his textualism. The left-liberal community has convinced itself that, although the authors of Title VII did not intend to protect gays, lesbians, etc. and subsequent Congresses have explicitly declined to do so, the text of Title VII mandates that members of these groups be deemed protected. A squadron of hack journalists, such as Dana Milbank, have insisted that Gorsuch will be exposed as a hypocrite unless he rules the way they want him to in these cases.
At oral argument, counsel for the plaintiffs in the two cases focused on persuading Gorsuch that textualism requires a victory for their clients. His questions to counsel suggested that, for him, the textual question is a close call.
It shouldn’t be. Title VII bans discrimination because of an individual’s sex. These words don’t mean because of an individual’s sexual preference, sexual orientation, sexual practices, or sex change.
In a post called “Mau-Mauing Justice Gorsuch on Title VII and Sex Discrimination,” Ed Whelan responds to the “deeply defective claim about the meaning of Title VII” that, as matter of sound textualism, any employment practice that can be applied only by identifying an employee’s sex amounts to discrimination because of sex. He writes:
One answer. . .is that, as the restroom and other examples illustrate, showing that an employment practice takes account of an employee’s sex is not enough to establish a violation of Title VII. A second answer. . .is that the employer who, say, bars a male employee who identifies as female from using the women’s facilities is treating that male employee “the same as a similarly situated woman”—that is, a woman who is barred from using the men’s facilities—and is thus clearly not discriminating on the basis of sex.
Once the causal question is framed correctly—as a question about why the employer treats a man who identifies as a woman differently from other men—it’s clear that sex is not one factor among others. It simply plays no role at all.
The coherent textualist argument that defeats the Title VII claims is that Title VII’s ban on discrimination because of sex does not impose a regime of asexuality or androgyny. Rather, to borrow the words of Justice Ginsburg that the Court unanimously embraced in Oncale v. Sundowner Offshore Services (1998), the “critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”
I’m not sure that even Oncale, which involved same-sex sexual harassment, represents sound textualism. Indeed, Justice Scalia’s opinion for the Court in that case is founded on the existence, as perceived by the Court in an earlier sex harassment case, of “a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment.” (Emphasis added).
Thus, the decision is more about inferred congressional purpose than about text.
In any event, as Ed shows, a finding that Title VII protects gays, lesbians, and transgender individuals is not required by the text of that statute. Rather, such a finding would be contrary to a sound textualism.