U.S. Supreme Court Justice Neil Gorsuch raised eyebrows earlier this year when he sided with the liberal wing in a decision redefining the meaning of “sex” under Title VII of the Civil Rights Act.
According to the Washington Examiner, fellow conservative Justice Clarence Thomas attempted unsuccessfully to dissuade Gorsuch from writing the opinion that drew widespread criticism on the right.
“It is sobering to imagine”
Justice Brett Kavanaugh joined Thomas in agreeing that Gorsuch reached an incorrect constitutional conclusion. Thomas signed a sharply worded dissent authored by Justice Samuel Alito.
“Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII,” Alito wrote in the final product. “But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed.”
In attempting to determine whether the civil rights legislation passed in 1964 paved the way for such gender-based provisions today, he found that it “indisputably did not.”
According to Alito, his colleague did not take a “modest, humble approach” in reaching his decision.
“If today’s decision is humble, it is sobering to imagine what the Court might do if it decided to be bold,” he wrote in reference to Gorsuch’s vote.
“Vision, tenacity, and grit”
Comparing the dissenting opinion to “a pirate ship,” Alito wrote that it sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice [Antonin] Scalia excoriated — the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”
As for Kavanaugh, he chose to dispute Gorsuch’s reasoning in a dissenting opinion of his own in which he praised the “vision, tenacity, and grit” of “gay and lesbian Americans,” as Fox News noted.
He declared the majority opinion an “important victory” for the community despite his own opposition.
While generally siding with the conservative majority, Kavanaugh has already established a pattern of striking “a distinctly more conciliatory tone” in his dissenting opinions, as The Hill reported.
The Supreme Court has rendered some decisions that have perplexed many conservative Americans in recent months, but it is encouraging to know that healthy debates are going on behind the scenes among the court’s conservative justices.