Conservative Justices Gave Progressives a Victory. Don’t Expect Them to Do It Again.

On Monday, the Supreme Court made a historic decision in the case Bostock v. Clayton County, declaring it illegal to discriminate against gay and transgender people in the workplace. The opinion was written by one of the five conservative justices: Neil Gorsuch, the first one appointed by President Donald Trump. This ruling may have seemed unexpected, but there are several factors at play here: the conservatives’ battle over ideology vs. principle, the straightforward nature of the cases at hand, and the court’s upcoming docket. It’s for these very reasons that we should expect the court to also make some sweeping hard-right decisions over the course of this term.

On Tuesday’s episode of What Next, I spoke with Mark Joseph Stern, who covers courts and the law for Slate, about how this conservative Supreme Court ended up handing a win to transgender and gay Americans—and why it may clear the way for progressives to face some losses in the next few weeks. Our conversation has been edited and condensed for clarity.

Mary Harris: This decision consisted of a few cases that were ruled on together. Can you refresh our memories?

Mark Joseph Stern: In one of them, there was a gay skydiver—who is now dead and whose estate carried the case forward—who was essentially fired for being gay and said, That’s federal sex discrimination, you’re taking my sex into account. The other case was brought by Gerald Bostock, who worked for Clayton County, Georgia, as a child welfare advocate and was fired for being gay after joining a gay softball league. The final case involves Aimee Stephens, who died recently. She was a transgender woman who worked at a funeral home and was fired for being trans.

The facts of the cases are all really simple. Gorsuch didn’t even spend that much time on them. These are just cut-and-dry examples of people who were good at their jobs and weren’t causing any problems but happened to be LGBTQ and got fired for it. These are good test cases because there are no complications here. It’s just: Is this or is this not a form of sex discrimination?

The argument Gorsuch made was really, really simple. It was the same argument made by the lower courts, I believe: that the Civil Rights Act of 1964 covers sexual orientation and gender preference.

No one here is claiming that sex literally means sexual orientation. What they’re saying is when you discriminate against a gay employee, you are punishing them for having a partner or multiple romantic partners of the same sex. You can’t take the employee’s sex out of that equation. It’s very similar, if not even more straightforward, when an employer discriminates against a trans worker. That employer is punishing the worker for failing to conform to the sex that they were assigned at birth. The employer is basically thinking about nothing but their sex. And so what Gorsuch says is, We keep using this word over and over again to describe what’s going on here, so it seems pretty clear that you can’t take sex out of the equation. That forces us to acknowledge that the Civil Rights Act already protects LGBTQ people from employment discrimination.

You wrote that this case was a “hack test” because it was a challenge to the conservative justices to stick by their principles, even when that would mean a liberal outcome. Can you explain that a little bit?

The conservative justices, to varying degrees, espouse a particular method of judicial interpretation called textualism. It really just means that you look at the text of the law. The idea is, we aren’t looking at legislative intent, we aren’t looking at legislative history, we aren’t going back and trying to figure out what Congress may or may not have wanted this law to mean—we are looking at the words Congress enacted into law, and that’s it.

This case presented a pretty straightforward application of textualism. What does it mean to discriminate because of sex? Can you discriminate in these ways without taking sex into account? If you can’t, then this kind of discrimination is illegal. Simple as that. If you want to argue the other side of this case, if you want to try to argue against LGBTQ rights, you really have to go beyond the text and start looking at what Congress meant when it passed this law in 1964. You have to try to divine the mental processes of lawmakers as they drafted and took votes on this law.

“This should put everyone on high alert for some pretty far-right decisions that may be coming down the pipeline.”

— Mark Joseph Stern

Which is kind of what Alito does in his dissent.

It’s exactly what he does. It’s incredibly hypocritical because he constantly says we are not supposed to be looking at legislative history, we are not supposed to be trying to guess what Congress would have wanted, we’re only supposed to apply the text. And yet, when it turns out the text helps gender and sexual minorities, Alito turns around and says, never mind, no more textualism. When the stakes are this high, he’ll throw all of these terms out that he’d normally spurn and use them to build his way to an anti-LGBTQ conclusion that strays really far from the actual text of the law.

John Roberts also was part of the majority opinion here. He and Gorsuch stood their ground, and you gave them credit for that. Were you surprised that this was the outcome, that these two conservative justices made this decision?

I did feel that there was a real chance Gorsuch would reach what I think is the right result here. I was more surprised about Roberts. I didn’t really see him voting this way based on oral arguments, but he can often be a wild card. I’m a little surprised, not just that those two justices voted this way but that they stood their ground over the following months. Remember, this is a case that was argued in October. It doesn’t usually take the court so long to decide October cases. They usually come down before June. The justices spent a very long time on this. And yet Gorsuch’s opinion for the court is only 29 pages. The rest of it—over 100 pages—is dissents. And I think it’s pretty clear that the broader conservative legal movement put a ton of pressure on the conservative justices to toe the line in this case.

At the beginning of this term, you came on the show and literally said, “I am here to terrify you and hopefully make you extremely afraid of the judiciary for the rest of your life.” Does a decision like this change that opinion?

Oh, no. In some ways, it actually frightens me even more.

Why?

Roberts and Gorsuch have just given themselves a huge amount of political capital. Remember, the court doesn’t have its own standing army to enforce its decisions. It relies, basically, on magic: our belief in its institutional legitimacy to have any power at all. If the court had only issued a ton of conservative opinions this term—if the court had said no to abortion, no to DACA, no to the CFPB, just totally crashed through all of these liberal projects—I think that court packing would be a real conversation on this campaign trail, and I think Joe Biden would be forced to take a position on it. And I think you would see a lot of liberals saying, we’re not even paying attention to the court because it’s illegitimate. But instead, you have a day of everybody on the left celebrating the Supreme Court and Gorsuch and Roberts. That gives both of them a huge amount of cover to erode Roe v. Wade, to let Trump hide his financial records and deport Dreamers, to gut the independence of the CFPB. Then they can still turn around and say, We’re impartial and independent and you should respect our decisions because sometimes we swing left. This is a classic trick. This is what Roberts has been doing for a long time. I don’t think it should cheapen the victory for LGBTQ rights, but it should put everyone on high alert for some pretty far-right decisions that may be coming down the pipeline.

What decisions are we still waiting for?

We’re still waiting for the DACA decision to learn whether Trump can deport Dreamers. We’re still waiting on the Trump tax records case, where we learn if New York state can get its hands on Trump’s tax returns and whether the House of Representatives can get its hands on his financial disclosures. Those are big cases—the basic question is whether Trump is above the law. We have the Louisiana abortion case, which asks if states can essentially regulate abortion clinics out of existence. We have a case asking whether president can fire the director of the Consumer Financial Protection Bureau whenever he wants—which would make the whole agency much less independent. We have a lot of high-profile decisions that are likely to all swing rightward. I think there’s some hope on the financial records case, but for the most part, this is still going to be a bloodbath for liberals. It’s not going to be a 50-50 split where each side gets a little bit of what it wants.

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