My father once sent me to a neighbor to borrow a left-handed monkey wrench. I was five or so, and believed my father needed this strange device. The neighbor, understanding the ruse, gently told me that all monkey wrenches worked whether the user employed his right or left hand. I returned and promptly told my Dad. He smiled and thanked me for my effort. He added that perhaps next time it might be good to question a request from others. Did a request make sense? I can still feel the warm blush of shame that covered my face.
During her 2010 Supreme Court confirmation hearings, Elena Kagan, Barack Obama’s solicitor general and former Dean of the Harvard Law School, created a stir in legal circles by stating, “We are all originalists.” Of course, she was correct but not as commonly understood. She was being honest, but not in the way the true believers—whether liberal or conservative—feared or wished.
Justice Scalia, a Catholic (and that is important and not bigoted), believed in dogma. He needed dogma like fish need water. Dogma, so he fervently believed, constrained him. Dogma, in his case originalism in all its myriad and contradictory permutations, allowed him to believe that he was not an independent actor. He was, according to his delusion, a historian, albeit, as it turns out, a poor one. But he was unbelievably smart. He was also the best propagandist of modern times, although he honestly believed what he wrote.
This brings me to Justice Gorsuch and his opinion regarding the meaning of “sex” and the use of a form of originalism (textualism). Justice Neil Gorsuch’s opinion in Bostock v. Clayton County redefines (or perhaps “defines”) the word “sex” in Title VII of the Civil Rights Act of 1964 to include “sexual orientation” and “gender identity.” That is rather odd, since no one at the time the statute was enacted, as Gorsuch freely admits, thought the word “sex” pertained to conduct then considered aberrant and sometimes criminal.
Justice Gorsuch asserted that he was on strong textualist (originalist) grounds. He said:
The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take 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. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.
(Emphasis by Kopf)
But the three dissenters (Thomas, Alito and Kavanaugh) thought quite differently and relied upon textualist grounds as well. It is fair to say they were genuinely stunned by Gorsuch turning the tables on them using their preferred method.
Here, in brief, is what Oyez accurately describes their views:
Justice Samuel Alito authored a dissenting opinion, in which Justice Clarence Thomas joined, criticizing the majority for attempting to “pass off its decision as the inevitable product of the textualist school of statutory interpretation,” but actually revising Title VII to “better reflect the current values of society.[“] Justice Brett Kavanaugh authored a dissenting opinion arguing that, as written, Title VII does not prohibit discrimination on the basis of sexual orientation (or by extension, transgender status).
What do I think about the substance of the decision? I don’t care.
But I do care about the seismic crack in originalism that Bostock reveals in stark and naked terms. Indeed, the Bostock case is a wonderful illustration of my advice to conservatives who are Scalia acolytes: To Judicial Conservatives: Originalism (textualism, plain meaning, etc.,) Is a Tool and Not a Principle—Don’t Cry, Grow Up!
Or put more succinctly, monkey wrenches can be used by either hand.
Richard G. Kopf
Senior United States District Judge (Nebraska)