LGBT Rights Supreme Court Ruling Is a Power Play by Gorsuch

(Bloomberg Opinion) - In one of its most important rulings for years, the Supreme Court has interpreted the federal anti-discrimination law to prohibit discrimination based on sexual orientation or transgender status. In a surprise to most observers, decision 6 to 3 was written by Judge Neil Gorsuch, one of Donald Trump's commissioners.
The decision marks Gorsuch's most important step so far to take over the cloak of the late judicial officer Antonin Scalia as the intellectual leader of the conservative wing of the court. That may sound strange and counterintuitive: after all, Scalia firmly rejected groundbreaking decisions to expand gay rights, and it is hard to imagine that he agreed with Gorsuch.
Indeed, Justice made Samuel Alito Scalia the focal point of his dissent and insisted (not implausibly) that Scalia could not have been on board with such a decision. "The court's opinion is like a pirate ship," Alito wrote memorably. "It sails under the flag of [Scalia], but what it actually represents is a theory of legal interpretation that Scalia has exorcised."
Gorsuch's trick could work well. Conservatives can be briefly frustrated by the outcome of this case. But it's liberals - mostly liberal law professors - who have a reputation for justice or break. And liberal lawyers who previously didn't particularly like Gorsuch must now uphold him as a model for legal honesty. He used his method to get a result against his supposed political preferences. That makes him a hero of the legal principle, at least for the moment.
With this reputation, Gorsuch can assert itself as a leading legal intellectual. It worked (to some extent) for Scalia, who, despite deep disagreements, treated Liberals with its premises and conclusions as a serious legal person.
The reason Gorsuch fights is the theory of legal interpretation known as "textualism". The basic idea is that when interpreting the federal law, judges shouldn't ask what the authors of the law wanted to say, or should try to guess the legislative intent from the Congress report or the political context. Rather, textualism says that the overwhelming focus of legal interpretation should be the words of the law itself: the text.
Driving this theory forward was one of Scalia's main contributions to contemporary legal thinking. In his eyes, textualism prevented judges from using interpretations to get the law to say anything other than what the law actually said.
Regarding Title VII, the classic 1964 anti-discrimination law, the textualist idea is very simple. The law prohibits discrimination based on gender. To discriminate against someone on the basis of their sexual orientation necessarily means discrimination on the basis of gender. After all, if you discriminate against a man because he is attracted to men, you would not discriminate against him if he were a woman who is attracted to men.
The same applies to transgender status. If you discriminate against someone because they identify themselves with a gender that is different from their biological gender at birth, you necessarily discriminate based on gender - because you would not discriminate against the person if they had the other biological gender.
Gorsuch's opinion follows this textualistic logic. He not only got all the liberals to join him, but also Supreme Judge John Roberts, who loves to show the world that the court's decisions are not closely partisan, which strengthens the institution's legitimacy (and cynics say) would build capital) he can later spend reversing liberal precedents).
Alito's tormented answer was to quote Scalia saying that laws should be understood as "what they communicated to reasonable people at the time of their writing." Alito pointed out that in 1964 no one thought that banning gender discrimination would include banning homophobic or transphobic discrimination.
Alito claimed that Gorsuch "updated" an old statute to adapt it to new morals - exactly what Scalia tried to block by creating textualism at all. Hence the metaphor of the pirate ship.
The problem with Alito's objection is not only that nobody believes Gorsuch tried to achieve a liberal result. If Alito's objection were valid, he would undermine textualism itself by turning it into a theory of legislative intent - not asking what the law says but what it should say. There is nothing new in the meaning of the word "sex" interpreted by Gorsuch compared to its meaning in 1964.
The result is that Gorsuch did what only law professors love (and we love it very much): he consistently applied his theory - even if his own political team won't like the result. Now that has to be credited to him. This decision is a milestone. And it will mean that liberals must treat gorsuch as serious justice, not just as a Trump servant. This in turn will help Gorsuch's quest to become the new Scalia.
Over time, conservative judiciary gorsuch will be awarded - in the long run, homophobia and transphobia are not profitable causes. And liberals will remember that Gorsuch has brought the country a significant gain in equality. You can't take that from him.
This column does not necessarily reflect the opinion of the editors or Bloomberg LP and its owners.
Noah Feldman is a columnist at Bloomberg Opinion and moderator of the podcast "Deep Background". He is a professor of law at Harvard University and was employed by the US Supreme Court, David Souter. His books include "The Three Lives of James Madison: Genius, Partisan, President".
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