Clarence Thomas attempted to persuade Neil Gorsuch against ruling with liberals in LGBT case: Report

In June, Gorsuch, President Trump’s first nominee for the high court, and Chief Justice John Roberts, nominated by President George W. Bush, sided with the liberal minority on the case. The case was argued in October 2019 and focused on two separate definitions of the term “sex,” with one side arguing it should be determined by social gender identity and the other arguing it should be determined by biological sex. Gorsuch reportedly concluded the first draft of the majority opinion in February after consulting liberal Justice Elena Kagan.

Kagan, nominated by President Barack Obama, both publicly and privately appealed to Gorsuch’s extensive familiarity with legal procedure and philosophy of textualism. “If he were a woman, he wouldn’t have been fired,” Kagan said of the case during oral arguments. “This is the usual kind of way in which we interpret statutes now. We look to laws. We don’t look to predictions. We don’t look to desires. We don’t look to wishes. We look to laws.” Upon conclusion of the opinion, Kagan quickly signed off on it. Her liberal colleagues, Associate Justices Stephen Breyer, Sonia Sotomayor, and Ruth Bader Ginsburg did so afterward.

“In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law,” Gorsuch wrote in the high court’s final majority opinion.

Conservative Justice Samuel Alito, a Bush nominee, was enraged by Gorsuch’s decision to side with the liberal minority and chief justice, immediately informing his colleagues that he would write a dissent to Gorsuch’s majority opinion. Thomas and Brett Kavanaugh reportedly agreed that Gorsuch’s interpretation of the laws was entirely incorrect. Alito finished his dissent in April.

“Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII,” Alito wrote in the final product. “But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not.”

Alito was particularly displeased with Gorsuch’s “modest, humble approach” to the law in the decision, writing in his dissent that, “If today’s decision is humble, it is sobering to imagine what the Court might do if it decided to be bold.”

“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 added.

Kavanaugh was reportedly unwilling to sign off on Alito’s rhetoric in his dissent and struck a different tone altogether in the high court’s final decisions. Though he expressed the belief that the court did not have “the responsibility to amend Title VII,” he acknowledged that the court’s decision was a public policy victory for gay rights activists.

“Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans,” Kavanaugh wrote in his dissent. “Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit — battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives.”

The decision will likely have wide-reaching implications for employers, especially those attached to a faith or religious tradition that disagrees with gay marriage or issues related to transgender people.