As the Supreme Court continues struggling with the unprecedented leak earlier this month of a draft majority opinion that would reverse Roe v. Wade, the draft’s author, Justice Samuel Alito, told a law school audience he was bothered by a court opinion written by a conservative colleague that extended employment protections to gay and transgender employees.
Alito’s speech came hours after the Supreme Court justices met face-to-face on May 12 for a closed-door conference on court business for the first time since the unauthorized publication of a draft majority opinion that would overturn Roe v. Wade generated a firestorm of controversy. After the conference, the court’s website was updated to indicate that one or more opinions in pending cases may be released on May 16. It is unclear which opinion or opinions those may be.
From the Supreme Court building in the heart of the nation’s capital, Alito remotely addressed an audience at the Antonin Scalia Law School, part of George Mason University, in Arlington, Virginia, 7 miles away.
The Bostock ruling expanded the meaning of the phrase “on the basis of sex” that appears in the nondiscrimination provisions of the Civil Rights Act of 1964.
A lack of linguistic clarity has clouded legal issues in recent years as the concepts of sex and sexual identity or gender have become difficult to separate. Despite the distinct dictionary meanings of “sex” and “gender,” many institutions and individuals use “gender” to mean biological sex. But the Bostock ruling embraces the concept of gender identity, which conservative critics say is a radical political invention that is not based on science, and a concept that was barely known when the statute was enacted.
Alito’s talk examined how the late Justice Antonin Scalia, who passed away in 2016, had influenced the Supreme Court’s methods of interpreting federal statutes, placing greater emphasis on the actual words in the law, instead of what Congress may have intended by them.
Alito said he supports textualism but claimed it was misused in Bostock, which was written by Gorsuch, a champion of textualism, according to a Washington Post report. (The talk was not recorded or transcribed, the law school told The Epoch Times by email.)
Although Gorsuch may be a “colleague and friend,” relying exclusively on the text of the law was “in my view indefensible.”
“It is inconceivable that either Congress or voters in 1964 understood discrimination because of sex to mean discrimination because of sexual orientation, much less gender identity,” Alito said.
“If Title VII [of the Civil Rights Act of 1964] had been understood at that time to mean what Bostock held it to mean, the prohibition on discrimination because of sex would never have been enacted. In fact, it might not have gotten a single vote in Congress.”
In the Bostock decision, the majority cited an opinion authored by Scalia, but Alito said they misunderstood it.
“I only wish Nino were here to enlighten us,” Alito said, using Scalia’s nickname. If the late justice were to say Alito was mistaken, “I would take that evaluation in good humor, and learn from the exchange,” the justice said.
In Bostock, Alito wrote a scathing dissent, slamming the majority’s “arrogance.”
“If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation—not to mention gender identity, a concept that was essentially unknown at the time,” Alito wrote in a dissenting opinion that was joined by Justice Clarence Thomas.
“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. 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,” Alito wrote.
