Bostock

June 15, 2020

I have many thoughts about today's Supreme Court decision in Bostock v. Clayton County. For now I'll just note a few things:

• The voting breakdown is incredibly interesting. We have a majority opinion written by Justice Gorsuch, joined by Chief Justice Roberts, Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan.

• There are two dissenting opinions, one written by Justice Alito (joined by Justice Thomas) and the other written by Justice Kavanaugh. Some folks seem to assume that the dissenters are "obviously" anti-LGBTQ. But I think that both the tone and reasoning of Justice Kavanaugh's dissent suggest that assumption is false.

• We are still waiting on a number of "big" opinions to be decided this term. I can't predict what's going to happen, but I wouldn't be surprised if many of the people who are thrilled by today's decision end up being very upset about one or more of the still-to-come decisions.

• Why am I saying any of this? Because we have been sold a story that we can make sense of the Supreme Court purely by thinking about the decisions in Republican vs. Democrat terms. I think that story is wrong.

• Often, what is behind the different Justices' votes are very different answers to fundamental questions like:

  • In our complex constitutional system, who should have the power to decide a given type of question?

  • What is the nature of text/language?

  • Should we interpret the words of our (difficult to amend) Constitution differently from how we interpret the words of a (relatively easier to amend) statute?

• If we can find the time, it is worthwhile to read "blockbuster" decisions for ourselves. Otherwise we run the risk of buying into pre-established narratives about how the Supreme Court works.