Neil Gorsuch, President Donald Trump’s first appointee to the Supreme Court, took over a seat vacated by the death of Antonin Scalia. Scalia was a noted “textualist,” a Justice who was focused, primarily, on the exact text of laws. For a textualist, the “intent” behind a law is unimportant. The only thing that matters is the interpretation of the actual text of the law
Gorsuch, in the run-up to his controversial appointment to the Supreme Court, noted that he was a student of textualism. On the political right, conservatives heralded Gorsuch as another Scalia.
Scalia’s hardcore textualist views made him an ardent defender of the Constitution exactly as it is written, making him a champion for issues like gun rights. Then, in a landmark case on Monday, Gorsuch headed the majority opinion on a landmark LGBT rights case.
And textualism led him to that point.
Did Conservatives’ Plan Backfire?
There is a common desire among pundits to paint the Supreme Court as partisan. However, despite justices being appointed by partisan presidents and confirmed by parties in Congress, they serve for life. As such, they have no fear of political blowback for the way they rule. The only considerations they have to make are whether or not they agree with lawyers’ arguments.
In Gorsuch’s case, this was evident in his ruling on a pair of cases Monday involving LGBT workers’ rights. In the cases, Gorsuch and five other justices found that the 1964 Civil Rights Act protected gay and trans workers from discrimination by their employers. The reason? Title VII of that law outlaws any discrimination “on the basis of sex”.
Textualism Applied Evenly
Gorsuch noted that, if you read the law literally, it’s clear that gay and trans people are a protected class. If you discriminate against one employee for dating men, but let women who date men work at your business, you’re discriminating on the basis of sex.
Likewise, if you fire an employee who identifies as a woman but was assigned male at birth, you’re literally using their sex to target them.
This interpretation was shared by the court’s “left wing”: Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. However, even another conservative appointee, Chief Justice John Roberts, joined the majority in the ruling.
Many conservative outlets decried the move, stating that Gorsuch and the Supreme Court were legislating new meaning into an old law.
Gorsuch, however, maintains that the original text stands for itself.