So my Poli Sci 1100 class from Fall '19 will remember -- or should! -- me saying that I thought the arg. in the Title VII cases would have significant pull with the conservative justices. I think it is worth expanding upon here so people understand exactly where this comes from.
I think there are 3 points I emphasized in class that seem relevant here. First off: It is genuinely surprising CJ Roberts joined the majority, given his hostile stance at oral argument. It's a reminder that oral arguments aren't always the best signal. But more importantly 2/
It isn't clear that Roberts necessarily agrees. Recall, the one real power of the Chief is that he is automatically the most senior justice, and the most senior justice in the majority assigns the cases. Had he not joined the majority, Ginsburg would have assigned. 3/
Needless to say, the opinion that Ginsburg wrote would have probably read very differently than the opinion Gorsuch wrote. In case you're wondering, yes, the annals of Chief Justiceships are replete with Chiefs engaging in this sort of strategic behavior. 4/
On the merits: This was an incredibly clever argument, which fully cloaks itself in conservative legal thought. Court conservatives fought a long and, initially lonely, battle to stop trying to figure out what Congress *really* meant when passing laws and to focus on the text. 5/
In other words, a major part of the conservative legal project for the past 50 years has been to stop arguments of the form "would Congress REALLY have meant that." Liberals HATED this, especially Brennan. This case effectively hoists textualists with their own petard. 6/
As a crucial aside: This is different than the legal conservative approach to *constitutional* interpretation, which focuses almost exclusively on what the framers meant. We can discuss the reasons for this distinction, but that belongs to another thread. 7/
(as a critical example of this: The favored conservative11th Amendment interpretation has almost nothing to do with the actual text of that amendment, though it's pretty plainly what the drafters had in mind). 8/
In any event, the argument here isn't (pace the opening sentence) about who gay or transgender people are, at least as such. It's more couched in terms of what they do. Imagine two men and a woman in an office, Amy, Bill and Chuck. Amy declares her love for Chuck. 9/
A day later, Bill also declares his love for Chuck. Now you could fire them *both* for violating rules against office romances. The issue is this: If you fire Chuck, what are you firing him for? 10/
The answer is that you are firing him for the exact same conduct that you are allowing Amy to engage in. The only difference between them is that Amy is a woman and Chuck is a man. The only distinction here is their sex. 11/
And that is prohibited by Title VII. Fin. There's no need to get into arguments along the lines of "well, what Congress intended with Title VII is to protect marginalized groups" or whatever theory you might have gotten with a more liberal Court. It's all in the text. 12/
I do think there are potentially some consequences for the way this is framed, particularly in terms of certain harassment cases where the animus might be directed against the class rather than the individual. But that's at the periphery. 13/
It is also notable that the Court did not take up the question of whether the federal RFRA abrogates Title VII. That might be one where the strict textualist approach doesn't work as well for the liberal side. 14/
As for Justice Alito's dissent, it rather stubbornly misses the boat. This case is not about discrimination about sexual orientation or gender identity as such. 15/ 
It is about the impossibility of enforcing rules stemming from those classes that don't ultimately create one set of rules for men and another set for women, which Title VII does not allow. Again, it is an immensely clever argument. 16/
This is good rhetoric, but it is wrong. The definition of "sex" is exactly the same as it was in 1964. Nothing is being updated here. Someone has just cleverly figured out a consequence of this that conservatives dislike. It's not updating the statute, it's good lawyering. 17/
Honestly, I read through Justice Alito's dissent and the entire time I'm thinking to myself, "yes, that's exactly the point." Like, this could be cut-and-pasted into the majority opinion. 18/
Yes. The Court isn't adding sexual orientation or transgender status to the CRA as such. It's saying you can't allow women to proclaim their love for men or present as feminine without allowing men to do the same. 19/
The majority invokes a hypothetical about a female employee who is a model employee, then brings her wife to an office Christmas Party and is fired. Alito responds: 20/
NO! It's not just that the employer has learned the employee's orientation. It's that the employer learned the employee is married to a woman. Firing her creates a standard whereby the male employees are allowed to do something the females are not, which the CRA disallows. 21/
And so it goes. In the end, from a conservative point of view, this is an easy case. It is easier,in fact, than Obergefell. You don't have to create some edifice about what the authors of the amendment/law wanted, and you don't have to write your views into the U.S. Reporter. 22/
Which brings me to my third, and final point. As I noted in my class, there are four checks on the Court. The first, impeachment and removal of a Justice, has never been used. The second, packing the Court, hasn't been used in some 130 years. 22/
The third, winning the presidency and/or controlling the Senate -- or failing to do so -- has had a significant impact on the Court's direction repeatedly: 1968/69, 1987, 2016, 2017 and 2018. The fourth, however, is time. 23/
Justices are inherently creatures of their time. It isn't accidental that the "Boomer conservatives" (assuming I'm correct about C.J. Roberts) were skeptical of this decision, while the Gen Xers were more open to it. 24/
Yes, Kavanaugh dissented, but his dissent is far more measured and limited than Alito's, and includes statements like this: 25/
It isn't accidental that Gorsuch has been more libertarian-y with respect to police powers than some of the older justices (even liberal justices) -- his worldview includes the '65-'95 crime wave but wasn't exclusively shaped by it. 26/
You also have a generation of conservative students for which originalism and textualism aren't really a means to an end, but to whom the first principles appealed, and who understand that they don't automatically lead to "wins" for a "side." 27/
There are even liberal originalists floating around. It shouldn't be surprising, then, if the newer Justices aren't really Scalia clones, even if they were influenced by his work, because they weren't as influenced by his time. 28/
(As an aside, if you get Gen X originalists off record, almost all of them will view his Raich dissent as a betrayal). As I always conclude my section on Article III, this new Court will be a disappointment to liberals in many ways, but it will likely surprise in others. 29/29
