Justice Neil M. Gorsuch was President Trump’s first choice for the Supreme Court and a conservative’s dream — until he wrote this week’s landmark opinion extending civil rights protections to LGBTQ employees nationwide.
The ruling sent a shudder through the ranks of conservative activists and columnists, some of whom saw signs of another betrayal by a Republican-appointed justice who ended up siding at times with liberals on key issues.
“This was not judging. This was legislating — a brute force attack on our constitutional system,” said Carrie Severino, president of the Judicial Crisis Network, which funded ads supporting Gorsuch’s confirmation in 2017.
Gorsuch spoke for a 6-3 majority in declaring that the 1964 Civil Rights Act’s ban on employment discrimination based on “sex” also covers lesbian, gay, bisexual, transgender and queer workers. “An employer who fires an individual merely for being gay or transgender defies the law,” he wrote in Bostock vs. Clayton County. Previously, Title VII of the act was seen as protecting women from gender discrimination.
Tom Fitton, president of the conservative group Judicial Watch, called it a “radical Supreme Court decision [which] shows that the threat to the rule of law doesn’t only come from leftist rioters in the streets.”
The Wall Street Journal’s editorial page called it “Another Win for the Kagan Court,” theorizing that Justice Elena Kagan, an Obama appointee and former Harvard Law School dean, had found a formula to win over Gorsuch and Chief Justice John G. Roberts Jr. “to rewrite the Civil Rights Act.” Monday’s decision “is merely the latest evidence that the Roberts Court, even buttressed by two Trump nominees, is in no consistent way ‘conservative,’” the editorial concluded.
One of the nation’s most outspoken conservatives was uncharacteristically restrained.