The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Another day, another set of leaks to Joan Biskupic of CNN. Yesterday I wrote about Part I in Biskupic's series. That report was designed to make Chief Justice Roberts look powerful. Today, Biskupic published Part II in her series. This report was designed to make Justice Gorsuch look decisive, and in control. Specifically, the report highlights his steadfast position on Bostock. Biskupic counters speculation that the majority opinion flipped, and that Gorsuch and/or Roberts changed their mind. No, we learn, Gorsuch was with Bostock and Stephens from the beginning. Let's consider each element of the report.
First, Biskupic explains that the vote in Bostock was set at conference. Roberts assigned the majority to Gorsuch at the outset. The assignment did not shift after conference.
[At the conference] Some justices raised concerns related to religious interests and shared bathrooms, the sources said. But even with their differences and some hedging, the die was cast in that private session for the ultimate 6-3 decision that emerged in June. That early vote, supported by Chief Justice John Roberts and Justice Neil Gorsuch, and the wrangling that eventually led to a broad decision in the groundbreaking case are among the new details in CNN's exclusive four-part series on the Supreme Court's historic 2019-2020 term. . . .
It was fellow conservative Roberts who assigned him the opinion.
Second, Biskupic explains that the precise details of the majority were not set in stone. Initially, there was a majority to find that Title VII prohibited discrimination on the basis of sexual orientation. But the Court was divided on whether Title VII also prohibited discrimination on the basis of gender identity.
But, according to the new details learned by CNN, when it came to the case involving a transgender woman, Aimee Stephens, who had challenged her firing at a Michigan funeral home, the justices were torn as they discussed the issue.
Some justices thought sexual orientation and gender identity cases would most definitely be treated the same under the law. But others wondered about differences with the claims and even whether the Stephens case might be returned to a lower court for further hearings, essentially punting on the question of transgender rights.
Biskupic then writes an absolutely fascinating line–pay attention to the emphasized words:
But once Roberts assigned the cases to Gorsuch and he, as expected, zeroed in on the text of Title VII's ban on discrimination "because of … sex," the majority readily signed on to the opinion declaring that both sexual orientation and gender identity would be covered.
"As expected." I think Biskupic means that Roberts assigned both cases to Gorsuch, and Roberts "expected" Gorsuch" to read Title VII to prohibit both sexual orientation and gender identity discrimination. (Later, Biskupic contradicts that assertion.) "Expected"! How on earth would Roberts know what Gorsuch was expected to do. This line really troubles me. Roberts assigned the majority opinion on transgender discrimination, without knowing for sure how Gorsuch would rule? If there was some doubt, and Roberts already knew the right answer, why wouldn't Roberts assign the case to himself. I think this phrase "as expected" is projecting a level of omniscience to the Chief Justice that is unwarranted. For reasons I will discuss later, I think this assertion is not actually what Roberts expected would happen.
Third, Biskupic later suggests that Roberts was on the fence about gender identity. During oral arguments, Roberts seemed concerned about the bathroom argument.
During oral arguments, Roberts had questioned how an employer would set policies for shared bathrooms for "a transgender man transitioning to a woman." Roberts separately referred to exemptions from state anti-bias laws for religious employers, and in their private discussions, CNN has learned, justices mulled religious liberty concerns.
But his vote shifted:
Another intriguing turn in the early dealings was the vote of Roberts with the majority…. Another intriguing turn in the early dealings was the vote of Roberts with the majority.
Biskupic explains that Roberts was subsequently persuaded that the same reading of Title VII that led to a prohibition on LGB discrimination also led to a prohibition of T discrimination:
As the justices in the majority began working out how to construe the reach of Title VII's plain-language protections against sex discrimination, they had to address how it applied to gay as well as transgender workers, specifically Stephens, who had been fired from her job in Michigan. When the 6th US Circuit Court of Appeals had ruled for Stephens, it said discrimination based on transgender identity is inherently sex discrimination under Title VII.
If this account is right, then it would make sense that Roberts assigned the opinion to split the difference. But then how could Roberts have "expected" to adopt a reading of Title VII with respect to gender identity that Roberts himself did not initially have. Something is not adding up here. For the "as expected" line to work, Roberts would have had to make up his mind before conference about the best reading of Title VII. Again, I think Biskupic is voicing what someone else thought was in Roberts's mind. I'm skeptical.
Fourth, Biskupic addresses allegations that Kagan guided Gorsuch to the textualist framework he adopted.
And as Gorsuch devised his legal rationale, liberal Justice Elena Kagan appealed in public and private to his interest in sticking close to the text of laws. A 2010 appointee of President Barack Obama, Kagan has demonstrated a savvy ability to negotiate across ideological wings of the bench.
Biskupic adds that some of these appeals came during oral argument:
During oral arguments in October, Kagan directed her appeal to Gorsuch. She asserted that a man who had been fired because he loved other men, rather than women, is protected under the Civil Rights Act. "If he were a woman, he wouldn't have been fired," Kagan said. "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." Title VII of the Civil Rights Act specifically bans discrimination "because of" sex, race, religion or national origin. Kagan contended that discrimination against a gay man because he loved other men, not women, necessarily, was "because of sex."
During oral arguments in Stephens's case, Justice Gorsuch seemed much more conflicted. He speculated about what a court should do "when a case is really close, really close." He added, "At the end of the day, should he or she take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility thatCongress didn't think about it." He asked if it is a "question of judicial modesty," and that resolving this issue might be "more appropriate [for] a legislative rather than a judicial function?" Based on this colloquy, I speculated that the Court might split the difference: rule for the sexual orientation plaintiffs, but rule against the gender identity plaintiff.
Biskupic explains that Gorsuch soon moved away from these concerns:
Gorsuch's approach typically leads him to narrower constructions of individual civil rights and liberties. But as he considered Title VII, his approach was leading to an opposite, more expansive result. While Gorsuch expressed concern at oral arguments about "massive social upheaval" if the justices ruled in favor of broad LGBTQ worker protections, he has previously asserted that a true textualist should not concentrate on whether an outcome would be good or bad.
Pay attention to that phrase,"true textualist." In contrast to what? A faux textualist? And the focus on "previously asserted" is definitely replaying past debates. Here, I think Biskupic is voicing Kagan's internal pleas to Gorsuch. This charge is an attack on the oversized ego of an overly prideful man. Calling Gorsuch a fake textualist is like calling Marty McFly chicken. He can't back down.
Imagine the conversation:
Elena: Come on Neil, you've wrote in your bestselling book that a "true textualist should not concentrate on whether an outcome would be good or bad."
Neil: Yeah, but this is a huge shift in how the law would work.
Elena: What would Scalia do? Are you a fake textualist?
Neil: Nobody calls me a fake textualist!
Elena: Prove it.
Neil: All right, Elena.
If only someone had told Neil that Nino was following precedent in Oncale, and not being a "true textualist." I'll give you a better Scalia line: "Hubris is sometimes defined as o'erweening pride; and pride, we know, goeth before a fall." Gorsuch fell hard here.
Later, I think Biskupic was voicing Kagan's attempt to minimize her own role: Gorsuch didn't need Kagan's help!
Gorsuch exudes confidence regarding his textualist method and would easily have found arguments along those lines in the filings supporting the gay and transgender employees, without any guidance from Kagan.
Yet she was in touch with Gorsuch during deliberations, sources told CNN. And of all the four justices on the left, Kagan seems most able to persuade Roberts. Despite holding different ideologies and politics, their legal experience and instincts are similar, and they appear to enjoy a mutual respect.
The "exudes confidence" line is a bit of a backhanded compliment. I do think that Gorsuch is far too haughty and certain in his approach to law. But then again, Biskupic writes Gorsuch "would easily" have reached the conclusion he did. This line resembles the "expected to" line above. I think the same person who told Biskupic the "expected to" line also said "would easily." It presumes omniscience–that this issue is so obvious. Here, I think team Kagan was leaking.
But make no mistake. Gorsuch was in charge!
As the recently completed session demonstrated, Roberts is the conservative most apt to break with his brethren and join the four-justice liberal wing. But in the gay and transgender disputes, it was Gorsuch, writing for the majority, who played the central role as author of the opinion.
This last bit sounds like a Gorsuch-ally talking. Biskupic's voice goes back and forth. If you pay close attention, you can hear it.
Fourth, Biskupic tells us that Gorsuch's draft was finished in February. Kagan joined right away. Shocker! The other three progressives soon fell in line. They were willing to do a paper bag in Obergefell. Bostock was an easy lift. At the same time, the Chief joined did the Chief.
Gorsuch finished a first draft for colleagues to read in early February, CNN has learned. Kagan told Gorsuch and the others she was signing on straightaway. Soon after, the other liberals—Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor—joined Gorsuch's approach and conclusions in the three cases combined under the title of Bostock v. Clayton County. Roberts was in at the same time. That rapid sequence has not been previously reported. The quick agreement was a reflection of collaboration underway and an indication that the majority that had locked in soon after oral arguments was holding.
Biskupic clarifies that the liberals had some "pause" about Gorsuch's nods towards RFRA.
Questions of religious liberty were similarly handled by looking ahead, but with a firmer admonition. "We are … deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society," Gorsuch wrote, pointing to the First Amendment's guarantee of free exercise of religion and the 1993 Religious Freedom Restoration Act. The latter law prohibiting the federal government from substantially burdening a person's exercise of religion, Gorsuch asserted, could supersede Title VII's prohibition on sex discrimination in certain cases. That may have given liberal justices pause. But they were not going to press for change. They had won a 6-3 ruling that even a year earlier had seemed impossible.
Whatever. YOLO. Live for today, fight for January when there will be 13 Justices.
Fifth, Biskupic adds that Justice Alito's vituperative dissents were not successful at moving Justice Gorsuch.
On the other side, a series of scathing draft dissents by conservative Justice Samuel Alito that attacked Gorsuch's logic failed to dissuade any of the six justices in the majority, who did not waver through the final months of internal deliberations…..
During the drafting process, individual justices may break off to write separate concurring statements, or—in rare instances—a justice might switch sides altogether, persuaded by another person's writing. Here, nobody was swayed despite forceful arguments from the dissenters, according to CNN's reporting.
Alito was infuriated by the turn of events and immediately after seeing Gorsuch's draft opinion, according to sources familiar with the matter, alerted his colleagues that he would be writing a dissent.
Alito finished his dissent in April from home. Then Alito and Gorsuch began to respond to each other:
Alito, meanwhile, was unyielding. He believed Gorsuch's stance contradicted his own oft-expressed view that judges should avoid policy decisions. Alito finished his first draft after the justices had retreated to their homes because of the Covid-19 pandemic and sent around copies of his dissenting opinion in April, CNN has learned.
The two sides were thus joined as Gorsuch and Alito began to face off through continuous drafting. Within days in April, Gorsuch responded to Alito's scorching contentions and reinforced his textualist reading that Title VII's prohibition on sex discrimination covers LGBTQ workers.
Biskupic flags Alito's anger that Gorsuch thought he was being "humble."
Alito was especially angered by Gorsuch's view that he was taking a modest, humble approach to the law, as his dissenting opinion made clear. (Alito's final opinion, released to the public, said, "If today's decision is humble, it is sobering to imagine what the Court might do if it decided to be bold.")
Sixth, Biskupic writes that Kavanaugh was unwilling to join Alito's strident dissent. (That was my speculation):
Thomas signed on to Alito's dissenting opinion. Kavanaugh, however, was uneasy, according to the sources. In the end, he separated himself from Alito's caustic tone and wrote his own dissenting statement.
I found Kavanaugh's dissent to be far more persuasive than Alito's.
Seventh, we learn that Justice Thomas tried to informally coax his conservative colleague.
Justices Clarence Thomas and Brett Kavanaugh, Trump's second appointee, also believed Gorsuch was flat wrong about the scope of Title VII coverage. Congress could change the law if it thought additional protections were warranted, they contended.
Thomas, the senior member of that conservative team, had tried subtly to persuade Gorsuch that he was not being true to conservative textualism, but to no avail.
Look at the emphasized line: "not being true to conservative textualism." I think this line has to be read in conjunction with the Kagan colloquy about being a "true textualist." And note the distinction between "textualism" and "conservative textualism." Clarence Thomas would never describe his approach as "conservative textualism." Here, a progressive is slandering the type of textualism used by the dissent. This conversation is very one-sided. Put the pieces together. It isn't hard. Whoever gave the line about "true textualism" above gave the line about "true to conservative textualism" here.
Eighth, Biskupic confirms my intuition: the Wall Street Journal and others were acting on a leak.
Meanwhile, conservatives Gorsuch and Roberts were hit by outside pressure….
But in this high-stakes case, word that Gorsuch and Roberts had voted with the four justices on the left began leaking out in November, a rare breach of confidentiality during the drafting process at the secrecy-obsessed institution. Some spreading the word plainly hoped to jab the conservatives, perhaps even pressure them to change. The Wall Street Journal published an editorial on November 21 disapproving of the possible developments, headlined, "The Supreme Court's Textualism Test: Kagan tries to lure Gorsuch and Roberts off the Scalia method."
At the time I wrote my post in November, I was heavily criticized by people on the right. They told me that I should not be criticize people in my own camp based on mere speculation. I was right. And I have no problem criticizing those I agree with. I'm not chicken.
Biskupic also provides some insight into how unreliable leaks are. In short, people on the outside have incomplete information, that may be out of date. Also, those leaking information may not provide a full account–either because they do not know more, or cannot disclose more. In other words, those attempting to nudge the Justices may be fighting a battle that was already lost. That seems to have been the case with Bostock. By the time the editorials were written in November, the die had already been cast on sexual orientation; it was perhaps in flux on gender identity.
The most substantive part of the court's decision-making process comes as justices crafting the opinions for the majority and the dissent work out their legal rationales in drafts. The bottom-line judgment in any case is important, but it is the legal reasoning that establishes the rules for future related disputes. As justices develop their rationales, they send around drafts for the other eight justices to see.
Outsiders are often in the dark about internal alliances, motivations, and the twists and turns that lead to a nationwide ruling. The justices say their final, written opinion should speak for itself….
Few people beyond the court's walls really knew what was transpiring, yet those early whispers regarding votes and internal debate held some truth.
Biskupic clarifies that after the November leak, there were no more leaks:
While the justices sparred behind the scenes, advocates on both sides of LGBTQ issues were growing apprehensive about what was happening with the cases. After the conservative news reports in late 2019, little was leaking.
Finally, Biskupic adds some insights into Ramos v. Louisiana. During the October sitting, eight cases were argued, including Bostock and Ramos. Malvo, which involved juvenile life without parole, was also argued in October. But that case dismissed from the docket. That left seven cases. On April 20, Justice Gorsuch wrote the majority opinion in Ramos. That opinion was very fractured. Because Gorsuch authored Ramos, I thought he had already written for October, and I predicted that the Chief would have Bostock. But it turned out that Gorsuch wrote both Ramos and Bostock. What happened? There was some speculation that the majority flipped in Ramos. Biskupic confirms that scuttlebutt.
Meanwhile, a late switch in an unrelated case that also involved Gorsuch confounded lawyers and journalists, who were watching for signs of what might be happening in the LGBTQ disputes. …
So court-watchers were thrown off the trail when Gorsuch wrote the opinion in another October case, Ramos v. Louisiana, regarding whether state criminal convictions require a unanimous jury vote, CNN has learned. Gorsuch became the author of the court's opinion in that case only after justices had worked out their legal rationales months later.
Biskupic doesn't explain who flipped in Ramos. Again, this leak is designed to address concerns that Gorsuch flipped. He was rock solid from the get-go! This paragraph is written in the voice of Team Neil:
The Ramos development did not change the outcome or timing of the LGBTQ decision, but Gorsuch's leading role in the Ramos case was enough to fuel more questions for those searching for clues to which justice was writing the momentous LGBTQ decision.
The six-justice majority held to its view that Title VII covered gay and transgender workers without exception. None of the liberal justices nor Roberts was writing a separate opinion, as often happens in contentious cases. Here, the majority would speak with one voice: Gorsuch's.
Part II reflects a similar narrative in Part I: the initial assignment was set at conference, and did not change. For some reason, the Justices must be especially sensitive about changing their votes. I don't know why. Justices, like all people, are fallible. Justice Jackson aptly observed, "We are not final because we are infallible, but we are infallible only because we are final." And Justice Frankfurter reminds us, "Wisdom too often never comes, and so one ought not to reject it merely because it comes late." But I think the criticism of Chief Justice Roberts stuck. He changed his vote in the ACA case and in the Census Case! He was indecisive! He lacked backbone! He was affected by outside forces! No, a Justice cannot suffer slings and arrows of outrageous tweets. Therefore, the narrative has become one of steadfast resolve–everything was decided at conference, and only the wrinkles were smoothed out.
My prediction for Part III? John Roberts will look like an institutionalist in June Medical for standing by precedent, and setting aside the Louisiana abortion law. But, Roberts will be criticized for refusing to confront the historical evidence in Kagan's Seila Law dissent. Both of these efforts of rampant speculation would be consistent with Kagan's modus operandi. And Part IV? The struggles of Justices Kavanaugh and Gorsuch in Mazars. They worked hard to vote against Trump on paper, but in reality were closer to the dissenters. (I have a essay on that issue that will be published in National Review on Wednesday morning.)