See this is interesting op-ed's angle:
"Neil Gorsuch Lays Landmines Throughout LGBTQ Discrimination Opinion
This good result feels like an attempt to Trojan Horse in some awful stuff."
https://abovethelaw.com/2020/06/neil-gorsuch-lays-landmines-throughout-lgbtq-discrimination-opinion/?rf=1
"First of all, Gorsuch wrote the opinion. Handing a landmark ruling on civil rights to Gorsuch should tell you there’s some funny business in the offing. This wasn’t handed to the majority’s junior justice for the sake of doing yeoman’s work. In controversial opinions, the median justice might write the opinion to lay out the compromise terms that made the majority, but this opinion doesn’t seem to be all that prickly: the law says “sex” so you can’t discriminate on the basis of sex. The majority opinion isn’t based on a lot of sleight of hand or tenuous interpretations of different doctrines. Put another way, Sonia Sotomayor would have pegged an opinion squarely on that text in the statute too, so Gorsuch isn’t writing because of some kind of compromise. What’s the angle here?...
Now here comes the infamously pro-business, anti-regulation Gorsuch upholding a sweeping act of business regulation.
Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.
There we go! This is going to be the vehicle for the next assault on basic tenets of statutory interpretation and Chevron deference. The Civil Rights Act has long served as every conservative’s favorite argument for textualism. “If courts considered legislative history, then they would have to dismiss the addition of ‘sex’ as a joke?” you can hear some pompous professor posit. This, of course, ignores that Smith’s anti-civil rights coalition wasn’t a majority and the majority that passed the legislation did so intending to take the term seriously despite its disingenuous introduction, but what’s a conservative argument without cherry-picking? In any event, a case involving this statute sets up a perfect bid to undermine the value of legislative intent in divining the meaning of statutory language, as well as the doctrine granting executive agencies deference in interpreting how to execute statutory language. All of that stuff is “extratextual” nonsense!
Gorsuch couldn’t be more clear about what he’s intending to do with this opinion short of inserting a giant winking emoji:
This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the President. If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people’s representatives. And we would deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations.
Eyes. Rolling. So. Hard. Right. Now.
Gorsuch then proceeds to, you can’t make this up, cite old editions of Webster’s Dictionary to determine what “discrimination” could have possibly meant to those of the distant past. Neil Gorsuch is exactly the guy at the wedding or funeral that begins with, “Webster’s Dictionary defines….”
Alito and Kavanaugh wrote dissents almost perfectly constructed to set up Gorsuch’s ode to triumphant textualism. Alito even goes so far as to say that it’s crazy to limit statutory interpretation to the analysis of the text in a passage that could be captioned, “TFW your wholly contrived judicial philosophy betrays your naked political philosophy.” Alito’s dissent, longer than the majority opinion, reads as such a celebration of TERF culture it may as well be titled: Harry Potter and the Goblet Of Bigot Tears.
Pointing to later legislation that specifically references homosexuality as an indication that it couldn’t have been intended by the term “sex” in the Civil Rights Act, the dissents earn a proper textualist admonishment from Gorsuch:
But what? There’s no authoritative evidence explaining why later Congresses adopted other laws referencing sexual orientation but didn’t amend this one. Maybe some in the later legislatures understood the impact Title VII’s broad language already promised for cases like ours and didn’t think a revision needed. Maybe others knew about its impact but hoped no one else would notice. Maybe still others, occupied by other concerns, didn’t consider the issue at all. All we can know for certain is that speculation about why a later Congress declined to adopt new legislation offers a “particularly dangerous” basis on which to rest an interpretation of an existing law a different and earlier Congress did adopt.
“Particularly dangerous.” Remember that one, because that’s what it will be the next time the Court levels its aim on a statute that fails to explicitly spell out everything it means. For a group of people who sneer at “900 page bills” and “hundreds of thousands of pages of regulations” they sure do want Congress to write out every eventuality.
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