Thursday, July 30, 2020

A Weak Assumption in the Discussion of Gorsuch in Bostock

Richard Primus

                A lot of virtual ink has been spilled on Justice Gorsuch’s opinion for the Court in Bostock.  Much of it has adopted the frame that Gorsuch followed his jurisprudential principles—specifically, a commitment to a certain kind of textualism—even though it led him to a result that isn’t congenial to his side of the ideological divide.  I understand why people have adopted that frame.  But I want to suggest that discussing his opinion in those terms misses something pretty important.  It’s this: Why, exactly, should we think that Justice Gorsuch, as a matter of his personal normative commitments, has anything against employment-discrimination protection for LGBT+ persons?

                That’s the way the question needs to be posed.  After all, in much of the conversation about the significance of Gorsuch’s having decided for the plaintiffs in Bostock, the key point is that his opinion demonstrates the good-faith seriousness with which he takes his jurisprudential principles and that it does so in the best possible way: by demonstrating that he will follow those principles where they lead, even if he doesn’t like the result.  But “he followed his principles and not his preferences” only makes sense here if we think that Gorsuch would prefer a world in which employers were free to discriminate on the basis of sexual orientation and gender identity.  That might be true of Justice Alito, and it certainly seems true of Senator Josh Hawley.  But I don’t see why I should assume it of Gorsuch.

                I don’t say this because I have any special insight into Gorsuch’s views on social and moral questions about sexuality.  I don’t think I do.  What I know is that he is a white man in his early fifties, raised in Denver and D.C., who attended a series of elite universities and has since inhabited the world of the coastal legal elite (whether in D.C. or back in Denver).  Regardless of party affiliation, that profile predicts pretty progressive views—as compared, say, to the median American voter in 1985—on LGBT+ issues.  So it seems to me likely that when liberals look at Gorsuch’s Bostock opinion and think that he chose his jurisprudence over his policy preferences, they are making the mistake of painting all Republicans (or all senior Republican-appointed officials, or…) as holding views on this issue that are opposed to their own.  That picture badly misrepresents the world.  On the contrary, it’s precisely because the Republican-affiliated legal elite has for a long time contained a lot of people who disagree with social-conservative positions on sex and sexuality that the jurisprudence of sex and sexuality has come as far as it has during the last half-century, at a time when the Supreme Court has at all times had a Republican-appointed majority.

                If Justice Gorsuch qua citizen thinks that discrimination on the basis of sexuality or gender identity is wrong—or even if he just doesn’t have any strong commitment to wanting such discrimination to be permitted—then Bostock didn’t confront him with a conflict between his jurisprudence and his personal preferences.  That’s true even if he might have been skittish about the ruling on destabilization grounds or even if as a legislator he might have wanted to find a balance between the legitimate equality demands of LGBT+ persons and the liberty interests of private employers.  In any of those cases, it might be true that he wasn’t raring to impose liability for discrimination against LGBT+ persons, but the prospect of such liability also wouldn’t be a hard thing for him to swallow in the way that it would if he were simply homophobic. 

                I think Bostock was rightly decided, mostly for the reasons Gorsuch gave.  I’m glad he thinks so, too.  And again, I am not making any assertions about his actual views or his actual thought process as the case was before him.  I’m just pointing out—and I think it’s worth pointing out—that the standard framing of the case seems to have made a big (and for most of the assumers, unflattering) assumption about him, and I think that assumption should be treated with some skepticism. 


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