Ruling on LGBTQ rights once again reveals precarious nature of Supreme Court’s conservative majority

WASHINGTON – It took President Donald Trump only 11 days in office to decide that Colorado’s Neil Gorsuch deserved a lifetime appointment to the Supreme Court. Trump followed that up with his nomination of Maryland’s Brett Kavanaugh one year later.

But during their short time on the high court, the two conservatives have shown they are willing to tangle with doctrinaire conservatism – and with each other. Along with Chief Justice John Roberts, the court’s swing vote, they are denying Trump the reliable conservative majority he expected.

The volatility that Gorsuch and Kavanaugh bring to the court was on display Monday in the court’s 6-3 decision giving gay, lesbian and transgender workers protection under a 1964 federal law banning employment discrimination. It was the biggest decision by the court thus far this term, and Trump’s nominees played leading roles.

Roberts, who could have kept the writing of the opinion for himself, instead assigned it to Gorsuch, the most junior of the six justices in the majority. Kavanaugh, who most frequently sides with the chief justice, often against the court’s other three conservatives, penned one of two vehement dissents.

The result left Trump somewhat surprised but accepting of the court’s – and his nominees’ – verdict. “They ruled, and we live with their decision,” the president said, adding it was a “very powerful decision, actually.”

The LGBTQ victory was not a complete surprise. Gorsuch, even more than Roberts, had emerged as the likely swing vote back in October, when the case was argued. At the time, he said the argument was at least “in play” that the prohibition on sex discrimination in the federal law includes a worker’s sexual orientation and gender identity. But he worried a ruling for LGBTQ rights would entail “massive social upheaval.”

Fast forward eight months, and Gorsuch’s concern for what he had called “judicial modesty” went out the window. His ruling for three workers fired because they were gay or transgender was based on his fierce adherence to the literal meaning of words and laws. Roberts and the court’s four liberal justices were not put off by that reasoning, joining the opinion in full.

“When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest,” Gorsuch wrote. “Only the written word is the law, and all persons are entitled to its benefit.”

“Trying to follow the law”

It wasn’t the first time Gorsuch veered from the conservative course most of his advocates expected. Folksy and self-deprecating, the court’s lone westerner came from Colorado in 2017 and amply filled the late conservative Associate Justice Antonin Scalia’s seat on the bench. It took him only two terms to lead his colleagues in dissents.

At the same time, Gorsuch has made peace with the court’s liberals, often siding with Associate Justices Sonia Sotomayor and Ruth Bader Ginsburg in defense of the “little guy” being surveilled, accused, tried or convicted of a crime. 

In a span of seven weeks last term, Gorsuch dissented twice from the court’s refusal to hear Sixth Amendment challenges to criminal prosecutions. He was joined both times by Sotomayor, perhaps the court’s most liberal justice.

Still, he has been a reliable member of the court’s five-man conservative majority in most major cases over the past three terms. Those include 5-4 decisions upholding Trump’s ban on travel from several majority-Muslim nations, barring public employee unions from collecting “fair share” fees from non-members, and removing federal courts from policing even the most extreme partisan election maps.

“What I’m doing is not my preference. I am trying to follow the law,” he said during an interview with USA TODAY last September. “Nobody’s telling me what to do.”

Scalia’s influence

But if he cast himself in Scalia’s image, the comparison was difficult to make Monday. Scalia’s hallowed name was cited 21 times in the majority opinion and dissents – 19 of them by the dissenters.

“The court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled,” Associate Justice Samuel Alito wrote.

“The court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated – the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”

Where Gorsuch and Kavanaugh have differed, it is often Kavanaugh who aligns with Roberts and the liberals. In his first term, Kavanaugh agreed with Roberts in more than 90% of the cases. This term, he had been the only justice to agree with the court’s majority in every decision, until Monday when he parted ways over LGBTQ rights.

“When this court usurps the role of Congress, as it does today, the public understandably becomes confused about who the policy makers really are in our system of separated powers,” Kavanaugh wrote. “The best way for judges to demonstrate that we are deciding cases based on the ordinary meaning of the law is to walk the walk, even in the hard cases when we might prefer a different policy outcome.”

Far from united

Kavanaugh and Gorsuch, who clerked together for Associate Justice Anthony Kennedy in the 1990s, have been on opposite sides often. Gorsuch usually sticks to the letter of the law or the Constitution; Kavanaugh, less of an originalist or textualist, frets over the consequences of the court’s decisions. 

Their combined impact has yet to give legal conservatives the results they expected. In the 2018 term – the first including both of Trump’s nominees – only seven cases united the five conservatives against the four liberals, compared to 14 the year before. This term, there have been only six such pure conservative majorities. 

The court’s most conservative member, Associate Justice Clarence Thomas, was on the losing side several times Monday: not only on LGBTQ rights but in the court’s decisions not to hear any new challenge to gun control measures or the Trump administration’s challenge to California’s law allowing local authorities not to cooperate with federal authorities seeking to enforce immigration law.

The court has many major rulings to come in the next few weeks on abortion, immigration, religion and the president’s efforts to keep his tax returns and financial records away from congressional and law enforcement investigators. Those still could unite the five conservatives, including the Trump’s nominees.

But for now – thanks in no small part to Gorsuch and Kavanaugh – the court may be conservative, but it is far from united.