Kerby Anderson

Perhaps you have heard the phrase that people follow their basic principles, until they don’t. As much as most of us try to follow key principles in our life (whether they be principles of leadership, family, or morality), sometimes an issue arises that changes our behavior. That is certainly true of judicial interpretation.

While on the Supreme Court, Justice Neil Gorsuch has staked out his belief that legislatures (not the judiciary) should make law. And he has on more than one occasion been willing to tell Congress or a state legislature to write a less ambiguous law and not depend on the Supreme Court to fix it.

That is why his opinion in the Bostock case is most confusing. The editors of the Wall Street Journal started their editorial with these words: “An alien appears to have occupied the body of Justice Neil Gorsuch as he wrote Monday’s opinion.”

When Congress passed the Civil Rights Act of 1964, it was attempting to outlaw discrimination based on such issues as race, color, religion, and national origin. An amendment was proposed to include “sex” in the statute. It is obvious to just about anyone that in 1964 the word “sex” meant male and female. But Justice Gorsuch ruled that it also includes sexual orientation and gender identity.

In previous Supreme Court rulings, he has ruled that “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.” That is not what he and the other justices did in the case. Justice Gorsuch and the other justices reinterpreted the meaning of the word “sex” to fit their desired conclusion.

This is a debate that has been taking place in Congress, but the Supreme Court short-circuited the debate that should have taken place in a legislative body, not in the court.