The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Bostock v. Clayton County was argued on October 11, 2019. This case considered whether Title VII prohibits discrimination on the basis of sexual orientation. Shortly after the case was argued, there was a flurry of writings. Advocates on both sides contended that textualism supported their position. And, in due time, interest in the case petered out. As usually happens, writers go on standby until a decision is announced at the end of June.
But that silence was interrupted. On November 19, National Review published an essay by Robbie George (Princeton). He explains that Justice Gorsuch's opinion in Masterpiece Cakeshop cuts against Justice Kagan's textualist argument. "But Gorsuch's rigorous logical analysis," George writes, "proved that Kagan's description stacked the deck."
Three days later, the Wall Street Journal published an unsigned editorial that sounded a similar theme. The subhead explained, "Kagan tries to lure Gorsuch and Roberts off the Scalia method." The editorial continues:
Justice Kavanaugh, Justice Gorsuch's generational peer, will also have a say in defining what textualism means in the years ahead. If Justice Gorsuch or the Chief Justice follow Justice Kagan in defining textualism down, we hope Justice Kavanaugh and the others will explain their errors.
When I saw both of these editorials, in short succession, I had immediate flashbacks to May 2012. In the span of 48 hours, the National Review and George Will wrote that Chief Justice Roberts should not buckle under the pressure and uphold the ACA. I discussed these incidents on pages 227-232 of Unprecedented. Here is an excerpt:
On May 24, the editors of the National Review continued the theme. Supporters of the ACA were "threatening dire consequences for the reputation of the Supreme Court and especially for Chief Justice John Roberts if he joins a majority of the justices to strike down the individual mandate." The editorial concluded, "We suspect that Chief Justice Roberts wants his legacy to consist of promoting fidelity to the rule of law, not a few months of liberal approbation followed by further blackmail attempts. He should call a strike, and give his would-be advisers the brush- off they deserve."
Finally, on May 25, 2012, under the headline "Liberals Put the Squeeze to Justice Roberts" in his syndicated column, George Will claimed that progressives were "waging an embarrassingly obvious campaign, hoping [Roberts] will buckle beneath the pressure of their disapproval and declare Obamacare constitutional. . . . They hope to secure it by causing Roberts to worry about his reputation and that of his institution." These "clumsy attempts to bend the chief justice," Will wrote, "are apt to reveal his spine of steel." [Jeff] Rosen speculated to me that Will's intent was to "switch Roberts back." One Supreme Court reporter told me that the motivation of Will's article was "obvious"— to "shore up their side," or at least "raise questions about the other side."
The message from the right was loud and clear: Chief Justice Roberts should not be intimidated by Obama, Leahy, Rosen, and others.
In Unprecedented, I observed that there were leaks from the Court during the deliberations. These writings were offered in response to the leaks. I wrote:
However, conservatives were not reacting merely to Rosen's article. Our unpredictable and unprecedented journey took another sharp turn to the right. There were leaks from within the Court that directly influenced this response. Though Crawford's report was published on July 1, 2012, I've been told by those who heard the leaks that this information was known as early as May. Several in the Supreme Court press corps confirmed to me that they heard rumors about the chief justice's shifting position, but "nothing was firm enough for anyone to report on." It was speculative, but some on the right decided it wasn't worth risking it and sprang into action to shift the chief back. With the outcome of the most important case in decades on the line, something had to be done.
Soon after the message trickled from the Court that Roberts's vote was "in flux," a right-wing bat signal went out, with a clear message: we need to tell the chief justice to grow a backbone. George Will and others answered that call. Conservatives, who had been noticeably quiet about the outcome of the case after the conference, suddenly perked up in the home stretch, precisely when the war was being waged within the Court over the final vote. A Supreme Court reporter told me that in May "there seemed to be some sense in the conservative press that maybe this wasn't going to work out. It wasn't Kennedy to worry about. It was Roberts.
Has there been a leak in Bostick? Are conservatives trying to shore up Justice Gorsuch during the home stretch? The two pieces, published in short succession, with a similar message, remind me of the campaign waged in 2012.
Andy Koppelman offered a similar observation:
But within 72 hours, between November 19 and November 22, National Review and The Wall Street Journal published similar criticisms of Kagan, claiming that her textualism is counterfeit. The near-simultaneous attacks may be a coincidence, or they may mean that conservatives have learned something about what's happening in the Court's chambers—something that worries them. …
It is a remarkable coincidence that National Review and the Journal published these two critiques in quick succession. Perhaps some conservative justice indiscreetly complained to a friend that Kagan is winning. Let us hope.
I have no inside knowledge about the deliberations. These sorts of leaks, however titillating, are extremely harmful to the Court. They need to stop.