Today conservatives learned (again! how many times must this lesson be learned?) that the judicial nomination process produces jurists, not outcomes. Anyone who knows anything about Gorsuch's jurisprudence know that the plaintiffs in the Title VII cases . . . /1
aimed their arguments straight at Gorsuch -- not because he's a "squish," but because when it comes to textualism, he isn't! It's a different approach from Alito's original public meaning approach. The argument was over the philosophy, not the issue. /2
And if conservatives think the left marches in lockstep, consider - are left activists happy with Breyer/Kagan joining the Masterpiece Cakeshop majority? Or with the court breaking with the Obama admin 9-0 to define a ministerial exception to federal nondiscrimination law? /3
Philosophies certainly produce tendencies that carry with them some degree of predictability. I'd note that it was exactly Gorsuch's philosophy that led lots of conservative legal scholars to predict this Title VII outcome behind the scenes. I heard from them. /4
But again, for the vast bulk of the court, that philosophy is NOT simply, "I do what my team wants." Philosophies produce tendencies, they do not guarantee outcomes. If you vote like they do, you will be disappointed. /end
