Bench Memos

Law & the Courts

Did the Chief Assign Bostock to Gorsuch? Probably Not

It’s been widely assumed or asserted that Chief Justice Roberts assigned Justice Gorsuch the task of writing the majority opinion in Bostock v. Clayton County, in which the 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. An article in today’s Wall Street Journal makes that assertion and cites it as supposed evidence of the Chief’s skill in “building shifting coalitions”:

Although he didn’t write the decision, the chief’s hand was evident in the June ruling that extended federal civil-rights protections to LGBT employees: With the authority to assign opinions when he is in the majority, he chose a Trump appointee, Justice Neil Gorsuch, to deliver the 6-3 decision rejecting Trump administration arguments that businesses were free to fire employees because they were gay or transgender.

The fact of the matter is that we don’t know that the Chief Justice assigned Bostock to Gorsuch. It’s certainly possible that he did, and it’s a simple inference to draw. But I think it’s probably wrong. I would propose instead that the Chief Justice was not part of the majority at the post-argument conference in October; that Justice Ginsburg, as the senior justice in the then five-justice majority, assigned the opinion to Gorsuch; and that the Chief Justice jumped aboard the “pirate ship” at some later point, probably only after Gorsuch circulated his draft. If so, Bostock would be evidence of something other than the Chief’s leadership abilities.

Why do I doubt that the Chief assigned Bostock to Gorsuch? For starters, if the Chief were in the majority at conference, it would have been far more sensible of him to assign the opinion to himself. That way, he could directly and completely control what the opinion said. By contrast, if he had assigned it to Gorsuch, he would be eliminating any influence he would have over the opinion: so long as Gorsuch retained the four liberals (an easy task), he would have no reason to cater to the Chief.

Some folks compare the Chief’s supposed assignment to instances in which Chief Justice Rehnquist is said to have made himself part of the majority in order to limit the damage. But Rehnquist assigned the opinion to himself in such instances. The Chief and Gorsuch have hardly displayed similar jurisprudential approaches. Why would the Chief ever have trusted Gorsuch to write an opinion that would satisfy him?

I’ll note further that for the October sitting Gorsuch, alone among the justices, wrote two majority opinions. Three justices, including the Chief, wrote none. It makes plenty of sense that Ginsburg would assign Bostock to Gorsuch, even if it were his second assignment. It makes little sense that the Chief would. (An alternative theory that I’ve heard that tries to make overall sense of the October assignments—including the fact that Gorsuch’s other opinion from October was in Ramos v. Louisiana, with the Chief in dissent—is that Gorsuch was tentatively part of a conservative majority in Bostock, that the Chief assigned the majority opinion to himself, and that Gorsuch later flipped.)

I’ll put much less weight on discerning the tea leaves from oral argument. I will note, however, that folks on the Left who commented on the argument saw Gorsuch as their only hope and complained that the Chief was “fixated on trans bathroom use and fretted about exemptions for religious organizations.”

If I’m correct that the Chief wasn’t part of the original majority, why did he end up joining Gorsuch’s opinion?

One possibility, of course, is that the Chief concluded that Gorsuch’s opinion was soundly reasoned. I’m sorry to say that that strikes me as highly unlikely.

Gorsuch’s opinion in Bostock adopts a hyperliteralist reading of Title VII that threatens massive disruption. In both respects, it is the antithesis of the approach that the Chief has taken to statutory interpretation.

We can set aside for present purposes the debate between Gorsuch, on the one hand, and Justices Alito and Kavanaugh, on the other, as to who is properly applying a rigorous textualism. (I definitely side with Alito and Kavanaugh.) The relevant point here is that the Chief has never embraced a rigorous (or, if you prefer, rigid) textualism. Take, for example, what Justice Scalia labeled the Chief’s “results-driven antitextualism” in Bond v. United States (2014). There the Chief, joined by Justice Kennedy and the liberal justices, concluded that a federal statute that forbids any person knowingly to “possess[] or use … any chemical weapon” had an “ambiguity [that] derive[d] from the improbably broad reach of the key statutory definition given the term—‘chemical weapon’—being defined [and] the deeply serious consequences of adopting such a boundless reading.” As Alito points out in his Bostock dissent (pp. 40-44), for justices like the Chief who “have not espoused or practiced a method of statutory interpretation that is limited to the analysis of statutory text,” all the usual extratextual factors ought to cut against agreeing with Gorsuch’s analysis. (That point of course applies to the liberal justices as well, but as Justice Ginsburg has made clear, they have resolved to “be in one opinion,” whether or not they embrace the legal reasoning of that opinion.)

In his majority opinion, Gorsuch flat-out rejects consideration of the undesirable consequences of his ruling as “naked policy appeals.” Again, let’s set aside here the textualist response that Gorsuch had an obligation to try to reconcile his statutory reading with long-accepted practices under Title VII (e.g., sex-specific restrooms, locker rooms, shower facilities, and dress codes). What matters for purposes of assessing the Chief’s vote in Bostock is that the Chief himself has routinely emphasized consequences as part of his mode of statutory interpretation. Indeed, Jonathan Adler has concluded that the Chief, in interpreting statutes, “place[s] a higher priority on avoiding disruptive consequences than on any particular interpretive methodology.” In his dissent just last week in McGirt v. Oklahoma, the Chief complains that Gorsuch’s majority ruling in that case will have “consequences [that] are drastic precisely because they depart from how the law has [long] been applied” and that those consequences signal that the majority “may have taken a wrong turn in its analysis.”

In short, I cannot credit the notion that the Chief joined the Bostock majority because he actually agreed with it.

Why, then, might the Chief have joined it? The alternative explanations that come to mind are ugly and discrediting. Perhaps because he thought it best for the Court’s institutional legitimacy wanted to avoid a 5-4 ruling on a highly controversial issue? Perhaps because he wanted to create the impression that he was in command? Perhaps in exchange for votes from liberal justices that conferred supermajorities in other cases?

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