Bench Memos

2004—A mere audience member at an American Constitution Society panel discussion on the forthcoming presidential election, Second Circuit judge Guido Calabresi can’t restrain himself. Calabresi begins his comments from the floor by acknowledging that he is “not allowed to talk politics,” but he quickly descends into an extraordinary diatribe: “What the Supreme Court did in Bush v. Gore” was “exactly what happened when Mussolini was put in by the King of Italy” and “what happened when Hindenburg put Hitler in.” Of course, Calabresi is “not suggesting for a moment that Bush is Hitler.” But, “like Mussolini, he has exercised extraordinary power.” And “when that has happened it is important to put that person out [of office].”

A week later, Calabresi will apologize that his comments could reasonably have been understood to be partisan. In April 2005, the Judicial Council of the Second Circuit will confirm that Calabresi violated the canon of judicial ethics that provides that a judge “should not … publicly endorse or oppose a candidate for public office.”

In his majority opinion in Bostock v. Clayton County, Justice Gorsuch dutifully parrots some of the rhetoric of transgender ideology. In its ruling in the funeral-home case, the district court stated straightforwardly:

The Funeral Home hired Stephens in October of 2007. At that time, Stephens’s legal name was Anthony Stephens. All of the Funeral Home’s employment records pertaining to Stephens — including driver’s license, tax records, and mortuary science license — identify Stephens as a male.

Stephens served as a funeral director/embalmer for the Funeral Home for nearly six years under the name Anthony Stephens.

Gorsuch instead turns this into: “Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Garden City, Michigan. When she got the job, Ms. Stephens presented as a male.”

Similarly, in presenting his argument that discrimination on the basis of gender identity is sex discrimination, Gorsuch speaks of “a transgender person who was identified as a male at birth.”

But what these pious evasions obscure is that Gorsuch’s statutory analysis, for all its flaws, is predicated on the proposition that a man who identifies as a woman—a so-called transgender female, in transgender lingo—is in fact a man. (And likewise, of course, for a woman who identifies as a man.) Gorsuch’s opinion not only “proceed[s] on the assumption that ‘sex’ [in Title VII] … refer[s] only to biological distinctions between male and female.” His entire reasoning in favor of Stephens turns on the fact that Stephens was indeed a man when the funeral home fired him.

Consider this key passage from Gorsuch:

[T]ake an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.

If a person “who was identified as a male at birth” had actually somehow become a female at the time of the contested employment action, it would make no sense to say that an employer who treated that female differently from other females was discriminating on the basis of sex. It is precisely because Stephens remained a man from birth through the time he was fired that Gorsuch can say that the funeral home “penalize[d]” him “for traits or actions that it tolerate[d] in” women.

In short, Gorsuch and all the justices in the majority reject, implicitly but emphatically, the radical transgender claim that “trans women are women” and that “trans men are men.”

More broadly, as Ryan Anderson argues in this excellent piece, Gorsuch’s opinion is built on the “gender binary” that transgender ideologues reject. His reasoning applies to men who identify as women and to women who identify as men, but it doesn’t apply at all to individuals who identify as any of the dozens of other genders that are said to exist. Simply put, if an employer decides not to hire (or decides to otherwise penalize) anyone who identifies as “genderqueer” or “pangender” or “agender” or “gender fluid,” the employer’s decision is obviously not treating men (oops, people who were “identified as male at birth”) any differently from women and therefore does not amount to sex discrimination.

Similarly, Gorsuch’s reasoning on sexual orientation extends protections to gays and lesbians but not to bisexuals. An employer who decides not to hire anyone who identifies as bisexual doesn’t treat men and women differently.

The notion that the ordinary meaning of Title VII when it was enacted in 1964 (or any time since) embodies these distinctions embedded in Gorsuch’s reasoning is of course preposterous. That’s just further evidence that Gorsuch’s reasoning is deeply unsound.

In my analysis of Justice Neil Gorsuch’s opinion for the Court in Bostock v. Clayton County, I noted his past adherence to originalism and textualism, citing as an example the following passage from Wisconsin Central Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018):

Written laws are meant to be understood and lived by. If a fog of uncertainty surrounded them, if their meaning could shift with the latest judicial whim, the point of reducing them to writing would be lost. That is why it’s a “fundamental canon of statutory construction” that words generally should be “interpreted as taking their ordinary, contemporary, common meaning . . . at the time Congress enacted the statute.” Congress alone has the institutional competence, democratic legitimacy, and (most importantly) constitutional authority to revise statutes in light of new social problems and preferences. Until it exercises that power, the people may rely on the original meaning of the written law. [citation omitted]

That was far from an aberration. Gorsuch’s opinions have professed the same principles in numerous cases, going back to his tenure on the Tenth Circuit. Here are just some examples of passages from past cases. (All citations are to opinions of the court unless otherwise indicated.)

• “[I]t’s a ‘fundamental canon of statutory construction’ that words generally should be ‘interpreted as taking their ordinary . . . meaning . . . at the time Congress enacted the statute.’” After all, if judges could freely invest old statutory terms with new meanings, we would risk amending legislation outside the “single, finely wrought and exhaustively considered, procedure” the Constitution commands. We would risk, too, upsetting reliance interests in the settled meaning of a statute. Of course, statutes may sometimes refer to an external source of law and fairly warn readers that they must abide that external source of law, later amendments and modifications included. But nothing like that exists here. Nor has anyone suggested any other appropriate reason that might allow us to depart from the original meaning of the statute at hand.

—New Prime, Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019) (quoting Wisconsin Central) (citations omitted)

• [T]he real cure doesn’t lie in turning judges into rubber stamps for politicians, but in redirecting the judge’s interpretive task back to its roots, away from open-ended policy appeals and speculation about legislative intentions and toward the traditional tools of interpretation judges have employed for centuries to elucidate the law’s original public meaning. Today it is even said that we judges are, to one degree or another, “all textualists now.”

—Kisor v. Wilkie, 139 S. Ct. 2400, 2442 (2019) (concurring in the judgment)

• The Constitution’s meaning is fixed, not some good-for-this-day-only coupon . . . .

—American Legion v. American Humanist Ass’n, 139 S. Ct. 2067, 2102 (2019) (concurring in the judgment)

• Our job here is a modest one. We are charged with adopting the interpretation most consistent with the treaty’s original meaning.

—Washington State Dep’t of Licensing v. Cougar Den, 139 S. Ct. 1000, 1016 (2019) (concurring in the judgment)

• If the government’s arguments appear less than convincing, maybe it’s because they’re difficult to reconcile with the Constitution’s original meaning. The Sixth Amendment was understood as preserving the “historical role of the jury at common law.”

—Hester v. United States, 139 S. Ct. 509, 511 (2019) (dissenting from the denial of certiorari) (citation and internal quotation marks omitted)

• State governments were supposed to serve as “laborator[ies]” of democracy, with “broad power to regulate liquor under §2.” If the people wish to alter this arrangement, that is their sovereign right. But until then, I would enforce the Twenty-first Amendment as they wrote and originally understood it.

—Tennessee Wine & Spirits Retailers Ass’n v. Thomas, 139 S. Ct. 2449, 2484 (2019) (dissenting) (citations omitted)

• By all appearances, the Constitution as originally adopted and understood did not allow successive state and federal prosecutions for the same offense, yet the government wants this Court to tolerate the practice anyway.

—Gamble v. United States, 139 S. Ct. 1960, 2005 (2019) (dissenting)

• Bucklew’s argument fails for another independent reason: It is inconsistent with the original and historical understanding of the Eighth Amendment . . . .

—Bucklew v. Precythe, 139 S. Ct. 1112, 1126 (2019)

• As an original matter, I acknowledge, the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause, rather than, as this Court has long assumed, the Due Process Clause.

—Timbs v. Indiana, 139 S. Ct. 682, 691 (2019) (concurring)

• This mutated version of the “intelligible principle” remark has no basis in the original meaning of the Constitution, in history, or even in the decision from which it was plucked. Judges and scholars representing a wide and diverse range of views have condemned it as resting on “misunderst[ood] historical foundations.”

—Gundy v. United States, 139 S. Ct. 2116, 2139-40 (2019) (dissenting)

• The Constitution’s original public meaning supplies the key, for the Constitution cannot secure the people’s liberty any less today than it did the day it was ratified. The relevant constitutional provision, Article III, explains that the federal “judicial Power” is vested in independent judges. As originally understood, the judicial power extended to “suit[s] at the common law, or in equity, or admiralty.”

—Oil States Energy Servs. v. Greene’s Energy Grp., 138 S. Ct. 1365, 1381 (2018) (dissenting)

• Concerns with substantive due process should not lead us to react by withdrawing an ancient procedural protection compelled by the original meaning of the Constitution.

—Sessions v. Dimaya, 138 S. Ct. 1204, 1233 (2018) (concurring in part and in the judgment)

• We are not in the business of expounding a common law of torts. Ours is the job of interpreting the Constitution. And that document isn’t some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public meaning.

—Cordova v. City of Albuquerque, 816 F.3d 645, 661 (10th Cir. 2016) (concurring in the judgment)

• The fact is that statutes are products of compromise, the sort of compromise necessary to overcome the hurdles of bicameralism and presentment. And it is our obligation to enforce the terms of that compromise as expressed in the law itself, not to use the law as a sort of springboard to combat all perceived evils lurking in the neighborhood.

—TransAm Trucking v. Admin. Review Bd., 833 F.3d 1206, 1217 (10th Cir. 2016) (dissenting)

• Our job . . . [is] to apply the [Fourth] Amendment according to its terms and in light of its historical meaning.

—United States v. Carloss, 818 F.3d 988, 1015 (10th Cir. 2016) (dissenting)

• When interpreting the Fourth Amendment we start by looking to its original public meaning — asking what “traditional protections against unreasonable searches and seizures” were afforded “by the common law at the time of the framing.”

—United States v. Krueger, 809 F.3d 1109, 1123 (10th Cir. 2015) (concurring in the judgment) (citation omitted)

• Statutes and rules are the product of many competing interests and compromised objectives and the best guide to the “policy” they seek to vindicate is their terms and structure, not our supplemental conjuring. If Congress wants to withdraw district court jurisdiction in this or any other area of course it may, but it is not our business to substitute its judgment for ours based on our own views of optimal policy.

—United States v. Spaulding, 802 F.3d 1110, 1133 (10th Cir. 2015) (dissenting) (citation omitted)

• Whatever our policy views on the question of protecting reports of prospective violations, it is Congress’s plain directions, not our personal policy preferences, that control.

—Genova v. Banner Health, 734 F.3d 1095, 1099 (10th Cir. 2013)

• When seeking a statute’s ordinary meaning we must of course take care to study not just the particular isolated clause at issue but also its surrounding context.

—Prost v. Anderson, 636 F.3d 578, 585 (10th Cir. 2011)

1973—By a vote of five justices, the Supreme Court rules in United States v. SCRAP that plaintiffs, including a group of law students (“Students Challenging Regulatory Agency Procedures”), have standing to challenge the Interstate Commerce Commission’s decision not to suspend a 2.5% freight rate increase.

What is the alleged injury on which their standing is based? As the majority sums it up, the rate increase “would allegedly cause increased use of nonrecyclable commodities as compared to recyclable goods, thus resulting in the need to use more natural resources to produce such goods, some of which resources might be taken from the Washington area, and resulting in more refuse that might be discarded in national parks in the Washington area,” thus causing the plaintiffs economic, recreational and aesthetic harm. The majority even acknowledges that the case presents “a far more attenuated line of causation to the eventual injury” than in a case the previous year in which the Court found no standing, and it further observes that “all persons who utilize the scenic resources of the country, and indeed all who breathe its air, could claim harm similar to that alleged by the environmental groups here.”

1980—Mere months before losing his bid for re-election, President Jimmy Carter appoints ACLU activist Ruth Bader Ginsburg to the D.C. Circuit. Carter had nominated Ginsburg only two months earlier.

1963—In the course of ruling in School District of Abington Township v. Schempp that the Establishment Clause forbids a Pennsylvania law that requires that Bible verses be read at the opening of each day of public school, the Supreme Court imposes what religion-law scholar Steven D. Smith calls the “odd couple of principles—religious neutrality and governmental secularity”—that have “bedeviled religion-clause cases ever since.” (As Smith explains, “as soon as we acknowledge that some or even most religions have a public dimension, with implications for public policy, a determinedly secular government is no longer religiously neutral.”)

1974—Jacob John Dougan and four other members of his Black Liberation Army begin implementing their plan “to indiscriminately kill white people and thus start a revolution and a race war.” Armed with a pistol and a knife, they pick up an 18-year-old white hitchhiker, Stephen Anthony Orlando, drive him to a trash dump, stab him repeatedly, and throw him to the ground. As Orlando writhes in pain and begs for his life, Dougan puts his foot on Orlando’s head and shoots him twice—once in the chest and once in the ear. Later, Dougan makes tape recordings bragging about the murder and mails them to Orlando’s mother and to the media. Sample content: “He [Orlando] was stabbed in the back, in the chest and the stomach, ah, it was beautiful. You should have seen it. Ah, I enjoyed every minute of it. I loved watching the blood gush from his eyes.”

In 1992, on Dougan’s sixth appeal to the Florida supreme court, three dissenting Florida justices opine that the death penalty was a disproportionate sentence under the circumstances. Justice Parker McDonald’s dissent, joined by chief justice Leander Shaw and This Day Hall of Infamy inductee Rosemary Barkett, includes these remarkable observations (emphasis added):

“This case is not simply a homicide case, it is also a social awareness case. Wrongly, but rightly in the eyes of Dougan, this killing was effectuated to focus attention on a chronic and pervasive illness of racial discrimination and of hurt, sorrow, and rejection. Throughout Dougan’s life his resentment to bias and prejudice festered. His impatience for change, for understanding, for reconciliation matured to taking the illogical and drastic action of murder. His frustrations, his anger, and his obsession of injustice overcame reason. The victim was a symbolic representation of the class causing the perceived injustices.”

“The events of this difficult case occurred in tumultuous times. During the time of the late sixties and early seventies, there was great unrest throughout this country in race relations.… I mention these facts not to minimize what transpired, but, rather, to explain the environment in which the events took place and to evaluate Dougan’s mind-set.”

“Understandably, in the eyes of the victim, or potential victims, the aggravating factors clearly outweigh the mitigating; in the eyes of the defendant, his friends, and most of those situated in the circumstances of Dougan, the death penalty is not warranted and is disproportionate to the majority of hate slayings, at least where the victim is black and the perpetrator is white.”

“In comparing what kind of person Dougan is with other murderers in the scores of death cases that we have reviewed, I note that few of the killers approach having the socially redeeming values of Dougan.” (This apparently refers to the dissent’s earlier observations that Dougan was “intelligent,” “well educated,” “a leader in the black community,” “taught karate and counseled black youths,” and once “participated in a sit-down strike in defiance of a court order” at a lunch counter that refused service to blacks.)  

2018—In their challenge (in Whole Woman’s Health v. Smith) to a provision of Texas law that would require them to bury or cremate fetal remains, abortion providers enlist the assistance of federal district judge David Ezra in harassing the Texas Catholic Conference of Catholic Bishops, which is not even a party to the litigation. On Father’s Day, Ezra issues an order giving the Texas Catholic Conference a mere 24 hours to turn over to the abortion providers some 300 internal Conference communications among the bishops and their staff. That’s on top of thousands of pages of documents the Conference had already provided.

A Fifth Circuit panel, in blocking Ezra’s order, will find his assessment of the competing interests “hard to fathom.”

Throughout his career on the bench, both on the Tenth Circuit and on the Supreme Court, Justice Neil Gorsuch has professed the importance of originalism and textualism and articulated what those concepts mean. In 2018, he wrote the following for the Court in a case called Wisconsin Central Ltd. v. United States:

Written laws are meant to be understood and lived by. If a fog of uncertainty surrounded them, if their meaning could shift with the latest judicial whim, the point of reducing them to writing would be lost. That is why it’s a “fundamental canon of statutory construction” that words generally should be “interpreted as taking their ordinary, contemporary, common meaning . . . at the time Congress enacted the statute.” Congress alone has the institutional competence, democratic legitimacy, and (most importantly) constitutional authority to revise statutes in light of new social problems and preferences. Until it exercises that power, the people may rely on the original meaning of the written law. [citation omitted]

This sums up well what originalism and textualism mean in statutory construction cases. Yet in his 6–3 opinion for the Court yesterday in Bostock v. Clayton County, Gorsuch rewrote Title VII of the Civil Rights Act of 1964 to include sexual orientation and transgender status — and in the process defied every sentence of the above passage.

To read Gorsuch’s opinion as applying originalist or textualist principles is to swallow the untenable propositions that (1) equating sexual orientation and transgender discrimination with sex discrimination is simply the ordinary, contemporary meaning of the operative phrase; and (2) this understanding of sex discrimination is not only correct, but also unambiguous. Not surprisingly, all three of the justices who share his judicial philosophy dissented.

To be sure, Gorsuch pays lip service to the relevance of ordinary public meaning, but he does not build that concept into anything more than the following: “An employer violates Title VII when it intentionally fires an individual employee based in part on sex.” By itself, that statement is uncontroverted. It simply begs the question of the case about the meaning of sex in the statute. The Court’s opinion has a lot to say about sex not needing to be the sole or primary cause of termination for a Title VII claim, but as Justice Samuel Alito wrote in a dissent joined by Justice Clarence Thomas, its “extensive discussion of causation standards is so much smoke.”

After that, Gorsuch addresses ordinary meaning only in the form of straw men, to show what it does not mean. For one thing, he writes, “ordinary conversation” does not give us the answer. That is how he gets around his own concession, “If asked by a friend (rather than a judge) why they were fired, even today’s plaintiffs would likely respond that it was because they were gay or transgender, not because of sex.” Why is that irrelevant? Because that might give us “the primary or most direct cause rather than list literally every but-for cause.” In other words, more smoke on causation.

The second straw man is that sometimes a law’s drafters must be consulted to discern “shifts in linguistic usage or subtle distinctions between literal and ordinary meaning,” but this was not a case in which the sued employers “seek to use historical sources to illustrate” either point.

Neither argument gets the majority where Gorsuch wants to take it. Well beyond casual conversations in informal settings, the ordinary meaning of sex is different from sexual orientation and transgender status in every imaginable context, from cases involving specific parties to legislators and executive officials setting more abstract rules.

Until 2017, over half a century after the 1964 Act was passed, every single court of appeals decision facing the issue interpreted sex discrimination to mean discrimination because of biological sex. As Justice Brett Kavanaugh observes in a separate dissent, the first ten circuit decisions to consider the sexual orientation question unanimously said no; a total of 30 judges of varying judicial philosophies reached the same conclusion. Additionally, before yesterday, the Supreme Court has had numerous opportunities to decide sexual orientation cases, and none of the 19 justices who participated in those cases ever equated such discrimination with sex discrimination, subjecting it instead to a different standard of scrutiny.

The majority does not fare better when we look at other branches of government. As Kavanaugh points out, Congress has never equated sex discrimination with sexual orientation discrimination or classified one as a form of the other. It has passed numerous laws prohibiting sexual orientation discrimination in various contexts, and every single one of those expressly articulates that prohibition in addition to a prohibition of sex discrimination. The same is true of presidential executive orders and any number of federal agency regulations. It is also true of almost every state statute or executive order. For that matter, listen to any argument today regarding gender discrimination and LGBT issues, on either side, and you will notice the speaker never assumes one category includes the other.

The relevant meaning has been consistently against the majority’s view since 1964, but however much as it seems like piling on, it is still important to note that none of the historical evidence surrounding the statute’s passage remotely supports it. Alito’s dissent demonstrates that when the Civil Rights Act was being debated, the Court’s construction was beyond anyone’s imagination. If it were otherwise, opponents could have seized on that possible interpretation for a slam-dunk argument against passage. Gorsuch dismisses historical evidence on grounds that other future applications of Title VII were not contemplated in 1964, such as protecting men from discrimination and addressing sexual harassment, but of course those applications remained anchored to biological sex.

If any doubt remains that Gorsuch has abandoned any real ordinary meaning argument, read Kavanaugh’s discussion of why the “rule of law and democratic accountability” require ordinary meaning to trump literal meaning. Then read the litany of examples he gives to illustrate the point. For example, “A statutory ban on ‘vehicles in the park’ would literally encompass a baby stroller,” and a Supreme Court decision found that a statutory context would be upset if water were interpreted to be a mineral. Gorsuch cites fewer examples of this dichotomy, and he does so only to demonstrate the irrelevancy of the exercise. A little common sense can go a long way, but Gorsuch opts instead for his uncommon ability to discern meanings that waited over half a century for him to discover.

As Kavanaugh quotes Justice Antonin Scalia, “the good textualist is not a literalist.” But read Gorsuch’s opinion closely, and the only substance it contains is a literalist argument it strains to make. He poses the hypothetical of an applicant filling out a job application that was designed to ask about gay or transgender status without the employer knowing the applicant’s biological sex. That applicant could sue, he said, because deciding whether to check a box required knowledge about sex, and “sex still weighs as a factor in the employer’s decision,” even when it did not know the sex.

That does not make sense, but Gorsuch later states the closest thing to a premise for his conclusion: “[H]omosexuality and transgender status are inextricably bound up with sex.” That is cogent only in a sense that shuns ordinary meaning and invites the most open-ended literalism. “Title VII prohibits discrimination because of sex itself, not everything that is related to, based on, or defined with reference to, ‘sex,’” Alito points out. “Many things are related to sex.”

The distinction between ordinary and literal meaning here is gaping. And at the end of the day, this obliterates the notion that there is a lack of ambiguity in Title VII, at least one that helps Gorsuch. The only thing that is clear is that the statute means the opposite of the Court’s holding. And as Alito points out, that holding is sweeping enough to threaten destructive consequences to employer obligations (the “bathroom” question), the fate of Title IX and other laws that address sex discrimination, the future of women’s sports, religious organizations’ freedom with respect to their employees, health-care benefits, and free speech.

Justice Scalia would be disappointed that his successor bungled textualism so badly yesterday. This was not judging, this was legislating — a brute force attack on our constitutional system. While the question of whether to amend Title VII to add more categories may be a difficult one as a matter of policy, the question of the Court’s role on this issue was an easy one: Allow the people to decide the issue through their elected representatives, as a majority of states already have done with respect to sexual orientation.

In Bostock, six judges acting as advocates opted to rewrite the statute themselves, short-circuiting the legislative process and in the process denying the people a decision that should be theirs to make on a major issue. This is an ominous sign for anyone concerned about the future of representative democracy.

In my initial post on today’s ruling in Bostock v. Clayton County, I contrasted Justice Gorsuch’s majority opinion with Justice Alito’s dissent. Justice Kavanaugh also wrote an excellent dissent, one that is, I think, fully compatible with Alito’s. I’ll briefly offer some highlights here.

Kavanaugh draws the important distinction between “literal meaning” and “ordinary meaning” and emphasizes that judges are bound by the latter. (Pp. 6-11.) He argues that the ordinary meaning of the phrase “discriminate because of sex” plainly does not encompass discrimination because of sexual orientation: “In common parlance, Bostock and Zarda were fired because they were gay, not because they were men.” (Pp. 11-22.) (His dissent focuses on discrimination because of sexual orientation; he observes in a footnote that his analysis would apply “in much the same way” to discrimination on the basis of gender identity.)

Kavanaugh also points out that in the Court’s many previous cases involving sexual-orientation discrimination, “[n]ot a single Justice stated or even hinted that sexual orientation was just a form of sex discrimination.” That observation ought to apply to special force to the Chief Justice: How could he have dissented in Obergefell v. Hodges without addressing and rejecting the claim that laws that define marriage as the union of a man and a woman constitute sex discrimination subject to heightened scrutiny under the Equal Protection Clause?

Kavanaugh notes that in the first ten federal appellate cases to consider the issue “all 30 federal judges agreed that Title VII does not prohibit discrimination because of sexual orientation. Although the majority opinion “insists that it is not rewriting or updating Title VII, but instead is just humbly reading the text of the statute as written…., that assertion is tough to accept.” Yes, indeed.

In today’s much-awaited ruling in the Title VII cases (decided together under the caption of Bostock v. Clayton County), the Supreme Court ruled by a vote of 6 to 3 that discrimination on the basis of sexual orientation or transgender status constitutes discrimination “because of … sex” in violation of Title VII. Justice Gorsuch wrote the majority opinion, which was joined by the Chief Justice and the four liberal justices. Justice Alito and Justice Kavanaugh each wrote dissents, with Justice Thomas joining Alito’s dissent.

In his dissent, Alito memorably likens Gorsuch’s majority opinion to 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.

As someone who had much higher expectations for Gorsuch (and for the Chief Justice), I’m sorry to say that I completely agree with Alito. In this post, I will highlight some of the reasons why. Let me first acknowledge, though, that I do not view the path to the correct statutory answer as a simple one. It requires care to avoid some pitfalls.

1. Gorsuch’s majority opinion “proceed[s] on the assumption that ‘sex’ … refer[s] only to biological distinctions between male and female” (Majority at 5), but contends that “homosexuality and transgender status are inextricably bound up with sex”: “to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.” By his account, if an employer is okay that a female employee is attracted to men, that employer is discriminating on the basis of sex if he penalizes a male employee for being attracted to men. Ditto if the employer retains a self-identifying female “who was identified as female at birth” but fires a person who now identifies as female “who was identified as a male at birth.” (Majority at 10-11.)

As a technical matter, Alito points out that it is indeed “quite possible for an employer to discriminate on those grounds [i.e., sexual orientation or gender identity] without taking the sex of an individual applicant or employee into account”—e.g., through a blanket policy against hiring gays, lesbian, or transgender individuals. Indeed, he observes, employees’ counsel conceded the point at oral argument. (Dissent at 8-9.)

More importantly, Alito explains that the proper textualist inquiry concerns what the words of a law “conveyed to reasonable people at the time” it was enacted. (Dissent at 23 (quoting Scalia’s Reading Law).) “Textualists do not read statutes as if they were messages picked up by a powerful radio telescope from a distant and unknown civilization.” (Dissent at 24-25.) “In 1964, ordinary Americans reading the text of Title VII would not have dreamed that discrimination because of sex meant discrimination because of sexual orientation, much less gender identity.” (Dissent at 25.) That is so for several reasons, Alito explains:

First, in 1964 the concept of prohibiting discrimination “because of sex” was “a familiar and well-understood concept, and what it meant was equal treatment for men and women.” (Dissent at 25; see pp. 25-28.)

Second, while “it is painful to be reminded of the way our society once treated gays and lesbians …., the plain truth is that in 1964 homosexuality was thought to be a mental disorder, and homosexual conduct was regarded as morally culpable and worthy of punishment”:

We must therefore ask whether ordinary Americans in 1964 would have thought that discrimination because of “sex” carried some exotic meaning under which private-sector employers would be prohibited from engaging in a practice that represented the official policy of the Federal Government with respect to its own employees. We must ask whether Americans at that time would have thought that Title VII banned discrimination against an employee for engaging in conduct that Congress had made a felony and a ground for civil commitment.

The questions answer themselves.

Third, “Americans in 1964 … would have been bewildered to hear that this law also forbids discrimination on the basis of ‘transgender status’ or ‘gender identity,’ terms that would have left people at the time scratching their heads.” (Dissent at 34; see 34-35.)

2. Rather than attempt to harmonize his radical new interpretation of Title VII with settled practices under that statute and other laws prohibiting sex discrimination, Gorsuch dismisses invocation of these settled practices as “naked policy appeals” and as complaints about “undesirable policy consequences.” (Majority at 30-32.) But the longstanding acceptance of sex-specific restrooms, locker rooms, shower facilities, and dress codes—all of which require taking account of an employee’s sex—severely complicates Gorsuch’s claim that any employer policy that requires taking account of an employee’s sex clearly discriminates on the basis of sex under Title VII.

3. Gorsuch’s ruling will almost surely have extreme consequences. Those consequences wouldn’t provide a reason to misread the text of the law. But they ought to have induced more humility about whether Gorsuch’s reading is in fact right.

As Alito spells out, those consequences extend to whether bathrooms and locker rooms may be sex-specific (pp. 45-47), whether women’s sports and girls’ sports may be reserved for females (pp. 47-48), and whether colleges may assign dormitory rooms by sex (p. 48).

Gorsuch doesn’t dispute that such consequences will ensue; he says only that these “are questions for future cases.” (Majority at 31-32.)

4. In a telling but otherwise trivial passage, Gorsuch states that the Court granted certiorari in these cases “to resolve at last the disagreement among the courts of appeals over the scope of Title VII’s protections for homosexual and transgender persons.” (Majority at 4 (emphasis added).) What his “at last” obscures is that until 2017 there had long been a “unanimous consensus” (Dissent at 43) among the courts of appeals that Title VII’s prohibition on discrimination because of sex did not cover discrimination on the basis of sexual orientation or transgender status. As Alito notes, even the EEOC—well known for its adventuresome interpretations (that’s my observation, not Alito’s)—somehow “failed to see [what Gorsuch contends is] obvious for the first 48 years after Title VII became law.”

Last week, the Senate Judiciary Committee reported out Cory Wilson’s nomination to the Fifth Circuit, a day after Mitch McConnell filed for cloture on Justin Walker’s nomination to the D.C. Circuit. So the nominees to fill the only two remaining federal appellate vacancies are now before the full Senate.

Walker’s confirmation vote is expected imminently. That would make him President Trump’s 199th Article III judicial confirmation. On Wednesday, the Judiciary Committee will hold a hearing on five district court nominees that was originally slated for last week before being postponed.

Below is a full update on the status of President Trump’s judicial nominations.

Current and known future vacancies: 85

Courts of Appeals: 2

District/Specialty Courts*: 83

Pending nominees for current and known future vacancies: 48

Courts of Appeals: 2

District/Specialty Courts*: 46

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes 

Court of Appeals Nominees Awaiting Senate Floor Votes 

Nominees Awaiting Floor Votes: 18

Courts of Appeals: 2

District/Specialty Courts*: 16

Days Pending

• # of pending nominees originally nominated > 600 days ago: 1
• # of pending nominees originally nominated > 500 days ago: 4
• # of pending nominees originally nominated > 400 days ago: 4
• # of pending nominees originally nominated > 300 days ago: 5

All Nominees (via Judiciary Committee) Confirmed by the Senate during the 116th Congress: 119

Supreme Court: 0

Courts of Appeals: 21

District/Specialty Courts*: 98

All Nominees (via Judiciary Committee) Confirmed by the Senate since Inauguration Day: 204

Supreme Court: 2

Courts of Appeals: 51

District/Specialty Courts*: 151

* Includes the Court of Federal Claims, Territorial Courts, and the International Trade Courts

All Article III Nominees Confirmed by the Senate since Inauguration Day: 198

Supreme Court: 2

Courts of Appeals: 51

District/International Trade Courts: 145

1964—In Reynolds v. Sims, the Supreme Court rules, by an 8-1 vote, that the apportionment of seats in both houses of the Alabama legislature violates the Equal Protection Clause. In his majority opinion for six justices, Chief Justice Warren rambles his way to the conclusion that the Equal Protection Clause “requires that a State make an honest and good faith effort to construct districts … as nearly of equal population as is practicable” (whatever that means). In a brief separate concurrence in the judgment, Justice Clark criticizes Warren’s “use of these vague and meaningless phrases.”

In dissent, Justice Harlan complains that the majority ignores “both the language and history” of the Fourteenth Amendment, which show that “the Equal Protection Clause was never intended to inhibit the States in choosing any democratic method they pleased for the apportionment of their legislatures.” Harlan objects that the Court’s ruling will “have the effect of placing basic aspects of [nearly all] state political systems under the pervasive overlordship of the federal judiciary,” and that it “is difficult to imagine a more intolerable and inappropriate interference by the judiciary.” The ruling, he concludes, is part of a “current mistaken view … that every major social ill in this country can find its cure in some constitutional ‘principle,’ and that this Court should ‘take the lead’ in promoting reform when other branches of government fail to act.”

1982—In a 5-4 ruling in Plyler v. Doe, Justice Brennan’s majority opinion holds that the Equal Protection Clause requires Texas to provide a free public education to children who are illegal aliens since it provides such education to children who are citizens or legal aliens. In dissent, Chief Justice Burger states:

“The Court makes no attempt to disguise that it is acting to make up for Congress’ lack of ‘effective leadership’ in dealing with the serious national problems caused by the influx of uncountable millions of illegal aliens across our borders. The failure of enforcement of the immigration laws over more than a decade and the inherent difficulty and expense of sealing our vast borders have combined to create a grave socioeconomic dilemma. It is a dilemma that has not yet even been fully assessed, let alone addressed. However, it is not the function of the Judiciary to provide ‘effective leadership’ simply because the political branches of government fail to do so.”

1985—In Jenkins v. Missouri, federal district judge Russell G. Clark launches his desegregation plan for the Kansas City, Missouri, School District—a plan that will become (according to the description embraced by Chief Justice Rehnquist) the “most ambitious and expensive remedial program in the history of school desegregation.” Over the next twelve years, Clark will (as this report summarizes it) order the state of Missouri and the school district to spend nearly two billion dollars for “higher teachers’ salaries, 15 new schools, and such amenities as an Olympic-sized swimming pool with an underwater viewing room, television and animation studios, a robotics lab, a 25-acre wildlife sanctuary, a zoo, a model United Nations with simultaneous translation capability, and field trips to Mexico and Senegal.”

The results will, however, prove dismal: “Test scores did not rise; the black-white gap did not diminish; and there was less, not greater, integration.

1993—President Clinton announces that he will nominate D.C. Circuit judge Ruth Bader Ginsburg to fill the Supreme Court seat being vacated by retiring Justice Byron White.

In addition to dissenting from Roe and favoring its overruling, White authored the Court’s opinion in 1986 (in Bowers v. Hardwick) rejecting as “at best, facetious” the notion that the Constitution confers a right to homosexual sodomy. In stark contrast to White, the former ACLU activist Ginsburg maintained that the Constitution protected a right to abortion and even required taxpayer funding of abortion, and she had stated her sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy. Somehow legal academics fail to rise in alarm at the prospect that Ginsburg’s appointment will alter the “balance” of the Court.

1966—In a 5-4 ruling in Miranda v. Arizona, Chief Justice Warren’s majority opinion declares that a voluntary confession made during custodial interrogation will be conclusively deemed involuntary and inadmissible unless police first provide what are now known as the Miranda warnings (or unless other effective safeguards are adopted). It therefore vacates Miranda’s conviction.

In dissent, Justice Harlan states that “[o]ne is entitled to feel astonished that the Constitution can be read” to bar admission of a confession “obtained during brief, daytime questioning … and unmarked by any of the traditional indicia of coercion.” Harlan also observes that the “thrust of the [Court’s] new rules” is not to protect against coerced confessions but “ultimately to discourage any confession at all.”

2008—In Belmontes v. Ayers, Ninth Circuit arch-activists Stephen Reinhardt and Richard Paez join forces to rule that a murderer who had been sentenced to death received ineffective assistance of counsel during the sentencing phase of his trial. In dissent, Judge Diarmuid O’Scannlain explains that “the majority overstates the mitigating evidence, understates the properly admitted aggravating evidence, and ignores the further aggravating evidence that would have come in on rebuttal.”

Some 17 months later, in a per curiam opinion (in Wong v. Belmontes), the Supreme Court summarily reverses the ruling—the third time in this same case that the Court has reversed or vacated a ruling made by Reinhardt and Paez over O’Scannlain’s dissent (though Reinhardt can take consolation in the fact that one overturning was by a 5-4 vote and another was a “GVR”—an order granting, vacating and remanding in light of an intervening ruling by the Court). Among other things, the Court states that it “simply cannot comprehend the assertion by the Court of Appeals that this case did not involve ‘needless suffering’”:

The jury saw autopsy photographs showing Steacy McConnell’s mangled head, her skull crushed by 15 to 20 blows from a steel dumbbell bar the jury found to have been wielded by Belmontes. McConnell’s corpse showed numerous “defensive bruises and contusions on [her] hands, arms, and feet,” which “plainly evidenced a desperate struggle for life at [Belmontes’] hands.” Belmontes left McConnell to die, but officers found her still fighting for her life before ultimately succumbing to the injuries caused by the blows from Belmontes. The jury also heard that this savage murder was committed solely to prevent interference with a burglary that netted Belmontes $100 he used to buy beer and drugs for the night. McConnell suffered, and it was clearly needless.

The Court also notes that the Ninth Circuit majority, in addressing for the first time the murderer’s claim of ineffective assistance of counsel, suddenly “changed its view of the evidence.” Mitigation evidence that it had, in an earlier phase of the litigation, called “substantial” somehow became “cursory” and “insubstantial.” Whereas Reinhardt had concluded that “[t]here can be little doubt” that counsel’s performance “was prejudicial,” the Supreme Court labels “fanciful” the notion that any prejudice resulted.

2008—In Boumediene v. Bush, the Supreme Court, by a vote of 5 to 4, rules that aliens detained as enemy combatants at Guantanamo have a constitutional habeas right to challenge the basis of their detention in the course of an ongoing war. In so doing, the majority invalidates the statutory scheme that Congress and the president developed. As Chief Justice Roberts states in his dissent (for all four dissenters):

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.

Justice Scalia (also on behalf of all four dissenters) condemns the “game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief,” including the majority’s abandonment of the “settled precedent” of Johnson v. Eisentrager on which the president relied. Deploring the majority’s “inflated notion of judicial supremacy,” Scalia concludes:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today.

I somehow missed the Fifth Circuit ruling a week ago (in Texas Democratic Party v. Abbott) that overturned a flamboyant district-court order that would have required Texas officials to allow mail-in voting by any voter who claims disability because of lack of immunity from or fear of contracting coronavirus.

In his majority opinion, Judge Jerry E. Smith excoriates district judge Fred Biery for “an order that will be remembered more for audacity than legal reasoning.” Rejecting the proposition that federal judges have “a roving commission to rewrite state election codes,” Smith rejects the argument that Texas violates the Equal Protection Clause by not providing all voters the vote-by-mail privilege that Texas provides to persons aged 65 and over. (Slip op. at 16-25.) He similarly concludes that plaintiffs’ claim that Texas is discriminating “on account of age” in violation of the Twenty-Sixth Amendment fails under rational-basis review. (Pp. 25-28.)

In addition to joining Smith’s opinion, Judge James C. Ho wrote his own concurring opinion. Ho’s opinion makes two important points. First, he emphasizes that “courts have repeatedly found that mail-in ballots are particularly susceptible to fraud.” That factor makes it all the more appropriate that any “expansion of mail-in voting … be done by legislators, not judges.” (Pp. 35-40.) Second, if Texas law were deemed to violate the Twenty-Sixth Amendment, the appropriate remedy under Supreme Court precedent (Justice Ginsburg’s majority opinion in Sessions v. Morales-Santana) would appear to be a “leveling-down” injunction that would remove the special privilege from voters 65 and over, not a leveling up that would extend mail-in voting to those under 65. (Pp. 40-42.)

Judge Gregg Costa concurred in the judgment on the ground that the district court should have invoked the doctrine of Pullman abstention and declined to rule on the plaintiffs’ claims. (Pp. 43-47.)

(Smith was appointed by Reagan, Ho by Trump, Costa by Obama, and Biery by Clinton.)

In a decision yesterday (in Cook County v. Wolf), a divided panel of the Seventh Circuit left in place a district court’s preliminary injunction that prevents the Department of Homeland Security from enforcing its newly adopted “public charge” rule. In DHS’s summary, its rule “requires most aliens seeking to extend their nonimmigrant stay or change their nonimmigrant status to show that, since obtaining the nonimmigrant status they seek to extend or change, they have not received public benefits (as defined in the final rule) for more than 12 months, in total, within any 36-month period beginning Oct. 15, 2019.” (In enforcing its rule, DHS has explained that, due to litigation-related delays, it won’t look to public benefits received before February 24, 2020.) The district court’s preliminary injunction applies only within Illinois; it is in force pending the resolution of the litigation, at which time it will presumably be replaced by a permanent injunction.

Seventh Circuit chief judge Diane Wood wrote the majority opinion, which was joined by Judge Ilana Rovner. Judge Amy Coney Barrett penned a powerful dissent (which runs from pages 42 to 82 of the slip opinion). For those keeping score at home, Wood is a Clinton appointee; Rovner, a Bush 41 appointee, is among the court’s most liberal members; and Barrett is a Trump appointee and a prominent contender for his next Supreme Court nomination.

The majority and the dissent agreed that, under so-called step one of the Chevron framework of review of agency rules, Congress had not spoken directly to the meaning of the Immigration and Nationality Act’s provision that a noncitizen may be denied admission or adjustment of status if the noncitizen “is likely at any time to become a public charge.” But, as Barrett explains, they disagree significantly on how that provision should be read, and that disagreement largely explains why they divide on Chevron’s step-two question, whether DHS’s interpretation of that provision is reasonable. Here is the opening paragraph of Barrett’s dissent:

The plaintiffs have worked hard to show that the statutory term “public charge” is a very narrow one, excluding only those green card applicants likely to be primarily and permanently dependent on public assistance. That argument is belied by the term’s historical meaning—but even more importantly, it is belied by the text of the current statute, which was amended in 1996 to increase the bite of the public charge determination. When the use of “public charge” in the Immigration and Nationality Act is viewed in the context of these amendments, it becomes very difficult to maintain that the definition adopted by the Department of Homeland Security is unreasonable. Recognizing this, the plaintiffs try to cast the 1996 amendments as irrelevant to the meaning of “public charge.” That argument, however, flies in the face of the statute—which means that despite their best efforts, the plaintiffs’ interpretive challenge is an uphill battle that they are unlikely to win. [Abbreviations omitted.]

Barrett also explains at some length (pp. 43-49) that “[t]here is a lot of confusion surrounding the public charge rule”: “Contrary to popular perception, the force of the rule does not fall on immigrants who have received benefits in the past. Rather, it falls on nonimmigrant visa holders who, if granted a green card, would become eligible for benefits in the future.” It’s very unfortunate that immigrants who will never be subject to the public-charge rule are (in Barrett’s words) “dropping or forgoing aid out of misunderstanding or fear.” I wonder how much those who have been engaged in hyperbolic attacks on the rule have been responsible for that result.