The Volokh Conspiracy
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Chief Justice Roberts and Justice Gorsuch Walk Back Bostock
Justice Sotomayor is right. The majority cannot just wish away Bostock.
A lot can happen in five years. June 2020, or Blue June as I called it, was one of the most depressing periods in recent Supreme Court history. After Justice Kennedy retired, Chief Justice Roberts became the new swing vote, and swung to the left in nearly every case. Perhaps the most confounding decision was Bostock. Justice Gorsuch, joined by Chief Justice Roberts, ruled that the Civil Rights Act of 1964 all along prohibited discrimination against gays, lesbians, and transgender people.
The decision was profoundly wrong. Yet, I think Bostock can be understood, at least in part, as a reflection of the zeitgeist. June 2020 was close to peak woke. The pandemic combined with #MeToo and the George Floyd "racial reckoning" created a perform storm for progressivism. All of the trend lines seemed to be moving towards the acceptance of what is often described as transgender ideology--the argument that biological sex and gender identity were distinct, and that irreversible medical treatment should be provided to minors to conform biological sex sex to gender identity.
But over the past five years, those trend lines reversed. This reversal was due, in part, to new medical information about how puberty blockers and cross-sex hormones affect minors. It was also due to revelations that public schools were secretly transitioning children without their parents' consent. And perhaps most critically, people became no longer afraid to criticize the orthodoxy. The left's most powerful tool was censorship--on social media in particular. But boycotts against Target and Bud Light, as well as demonstrations about biological males competing in female sports, shifted the Overton Window on what could be discussed. (I worry that Justice Barrett would see these movements as "animus.")
Supporting these shifts were state legislatures that passed laws restricting providing medical treatment to minors, and barring transgender athletes from sports. Were these laws clearly constitutional under United States v. Virginia? I'll just say that Justice Sotomayor's dissent was more persuasive than I expected. Were these laws consistent with the "because of" analysis under Bostock? Again, I think the dissent made the case more persuasively than I expected. Chief Justice Roberts gave us yet another Houdini opinion: focus on the exceptions for the medical treatment, and ignore the necessary role that biological sex plays in the regime. The man is a master of misdirection. Don't be fooled. I think the Sixth Circuit and Justice Alito got it right.
So what changed between 2020 and 2025? In particular, what can explain the votes of Chief Justice Roberts and Justice Gorsuch. In fairness, I'm not sure the Chief ever fully bought Gorsuch's position. As the sixth member, he had a free vote, and he could cast it to help create the appearance of bipartisanship. I would like to give Roberts the benefit of the doubt, but he surrendered the presumption of regularity after NFIB.
What about Justice Gorsuch? It is difficult to describe how much anger Gorsuch received within conservative circles for Bostock. That decision gave Adrien Vermeule the perfect opportunity to advance common good constitutionalism. Bostock also opened a window for the James Wilson Institute to promote the study of natural law. For many people (not me) Bostock was the first hint that something was wrong with the Trump appointees. At a Federalist Society Convention, Gorsuch joked that he doesn't care what we think about his decisions. But that isn't true. One doesn't become a Supreme Court justice unless one deeply cares what members of his community think. Noscitur a sociis. Judge a judge by the company he keeps.
I remain convinced that the full court press placed on the conservative Justices helped grease the skids for Dobbs. And I think that pressure had an effect on Justice Gorsuch as well.
For example, during oral argument in Skrmetti, Justice Gorsuch did not say a word. He did not open his mouth once. Even as the word "Bostock" was uttered more than twenty times, Gorsuch said nothing. He gave the Wall Street Journal editorial page nothing to scrutinize.
What about during the opinion hand down? Mark Walsh offered this account:
As she discusses her view that the majority is trying to distinguish "away" Bostock v. Clayton County, the 2020 decision that said Title VII covered sexual orientation and gender identity in employment, Justice Neil Gorsuch, the author of Bostock but a member of today's majority, turns just to his left and looks at her intently, with his hand to his head.
The sound of silence.
(I am grateful that SCOTUSBlog-Dispatch is re-investing in this valuable feature.)
In Skrmetti, Roberts and Gorsuch walked back Bostock. That much is clear. Will it be overruled? Justice Alito said he would sail under that pirate flag as a matter of statutory stare decisis.
I dissented in Bostock, but I accept the decision as a precedent that is entitled to the staunch protection we give statutory interpretation decisions
But it will not be extended a single league further.
