Gorsuch vs. Gorsuch - An
alien legal being seems to have captured the Justice.
By The Editorial Board June 16, 2020 7:38 pm
By The Editorial Board June 16, 2020 7:38 pm
An alien appears to have occupied the body of Justice Neil Gorsuch as
he wrote Monday’s opinion in Bostock v. Clayton County, which sometimes happens
when Justices breathe the rarified air of the Supreme Court building. But
perhaps he’ll snap out of his living Constitution trance if he’s shown his own
previous work.
In Bostock, Justice Gorsuch updated the meaning of “sex” in the Civil
Rights Act of 1964 to include sexual orientation and gender identity. But in
2018 in Wisconsin Central Ltd. v. U.S., the Justice decried this approach to
judging:
“Written laws are meant to be understood and lived by. If a fog of
uncertainty surrounded them, if their meaning could shift with the latest
judicial whim, the point of reducing them to writing would be lost. That is why
it’s a ‘fundamental canon of statutory construction’ that words generally
should be ‘interpreted as taking their ordinary, contemporary, common meaning .
. . at the time Congress enacted the statute.’”
And don’t forget New Prime, Inc. v. Oliveira in 2019 where he quoted
himself: “‘[I]t’s a ‘fundamental canon of statutory construction’ that words
generally should be ‘interpreted as taking their ordinary . . . meaning . . .
at the time Congress enacted the statute.’” He added: “After all, if judges
could freely invest old statutory terms with new meanings, we would risk
amending legislation outside the ‘single, finely wrought and exhaustively
considered, procedure’ the Constitution commands.”
Yes we would, and nicely put. So what happened in Bostock?
One answer, we suppose, is that the other cases were obscure while
Bostock was politically charged. But it’s in these high-profile cases that a
Justice makes his reputation for standing on legal principle—or not. We still
prefer the alien explanation, and we’re available for a legal exorcism upon
request.
