So I’ve only skimmed it, but a couple of thoughts:
Gorsuch, like Roberts, is an excellent writer.
I’m absolutely stunned that Roberts and (especially) Gorsuch came down on this side. I am not a lawyer, but I think there’s a very strong case to be made for the conservative side: The Civil Rights Act has existed for more than 50 years, and for the past several decades Congress has introduced bills to add sexual orientation and, later, gender identity to the list of protected groups. A simple interpretation of those efforts is that the Civil Rights Act was understood by Congress to not include those groups. Since Congress has failed to enact any legislation to grant CRA protections to those groups, they remain outside the scope of the CRA.
If this is a prelude to Gorsuch and Roberts going full Souter, just inject that shit straight into my veins.
No, you need to read the decision in line with your broader point. The idea here is to ignore Congress’ intent in favor of a literal and legalistic reading of the text of the statute. This type of move much more often promotes the conservative agenda. The only surprise is when a few of the conservatives maintain some consistency, which occasionally leads to a good result.
Gay rights were so anathema in 1964 when Title VII was passed that legislators could not have conceived that “sex” could be read to include sexual orientation.
I’m just saying there was more than a fig leaf of an argument for Gorsuch and Roberts to vote differently, and I’m surprised (like you) that they didn’t take it.
I think it’s also very significant that the CRA is being interpeted in Gorsuch’s opinion as prohibiting any adverse actions even PARTIALLY motivated by gender or sexual orientation. That is, the opinion explicitly says that gender/orientation need not be the sole or primary cause of the adverse action - it can’t play ANY role in the employer’s decision.
Yeah, second bullet point is kind of where I am on this as well. Roberts and Gorsuch had an easy out (even beyond what you mention) to vote with the other 3 conservatives and it would have been much more logically defensible than a lot of decisions they’ve made.
They could have even taken the Kav line (i.e., there should be no discrimination on these grounds but congress needs to make that law), but they chose not to.
But a win is a win. And I’ll take it however we get it.
I realize it’s just hyperbole, but ain’t no way Gorsuch is going full Souter. Roberts, maybe. But even that is struck by lightning kind of odds.
My lay opinion is that Alito is the WOAT, I’m not sure I’ve ever seen him surprise me in a good way even once. I’ve got Rapey solidly ahead of Alito. I actually think Rapey has a higher chance of going full Souter than Gorsuch (but still approximately zero).
