Gorsuch, Alito and Kavanaugh Tangle Over Textualism in Major Win for LGBT Workers
Monday's landmark win for LGBT workers revealed intense disagreements within the court's conservative wing. Justice Samuel Alito called the majority decision, written by Justice Neil Gorsuch, "breathtaking" in its "arrogance." Added Kavanaugh: "The best way for judges to demonstrate that we are deciding cases based on the ordinary meaning of the law is to walk the walk."
June 15, 2020 at 03:21 PM
7 minute read
The original version of this story was published on National Law Journal
The U.S. Supreme Court's landmark ruling applying the nation's workplace discrimination law to protect LGBTQ workers revealed intense disagreements within the court's conservative wing over who properly claimed the mantle of "textualism."
In a 2015 Harvard Law School lecture, Justice Elena Kagan, underscoring the legacy of the late Justice Antonin Scalia, said, "We are all textualists now." But in the court's Monday 6-3 decision in Bostock v. Clayton County, Georgia, textualism clearly meant different things to Justice Neil Gorsuch, who wrote the majority opinion, and dissenting Justices Samuel Alito Jr. and Brett Kavanaugh.
Gorsuch arrived at the Supreme Court with a firm reputation as an uncompromising textualist. He has written that a textualist should "strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be."
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