One Supreme Court Justice Was Wearing His Smarty-Pants More Than All the Others This Term

The Supreme Court's term is over, which means the annual argument about what the justices actually did has begun. Most of that argument is about outcomes — who won, who lost, which precedent survived the summer. The more interesting argument, taken up this week by Slate's legal team on Amicus, is about method. And it lands on Neil Gorsuch, the justice who spent half a decade being described as the least predictable conservative on the bench.

That description was never really about his votes. It was about a single opinion, and about the promise that opinion seemed to make.

The opinion that bought him a decade of credit

In 2020, Gorsuch wrote the majority in Bostock v. Clayton County, holding that a federal law forbidding discrimination because of sex necessarily covers gay and transgender workers. The reasoning was narrow and mechanical on purpose: if you fire a man for being attracted to men but would not fire a woman for the same thing, you have treated him differently because of his sex, and the statute says you cannot. No sweeping language about dignity, no appeal to evolving standards. Just the words, applied without flinching.

Conservatives were furious, and that fury was the whole point of the credit he earned. Here, apparently, was a judge whose method could produce a result his own side hated — which is the only real evidence that a method exists at all. For six years, every profile of Gorsuch has been built on that one data point.

Two cases, one direction

This term he spent the credit. In the cases over transgender athletes, he joined the majority and wrote at some length about why Bostock's reasoning did not reach the question. Distinguishing your own precedent is an ordinary judicial act, and the distinction he drew is not frivolous. It is also the kind of distinction that a judge reaches for when the destination is already chosen.

Then came Trump v. Barbara, the birthright citizenship case, decided by a single vote. Four justices were prepared to uphold at least part of the executive order — a fact worth sitting with, given that the constitutional text has been read the same way since the nineteenth century. Gorsuch signed on to Clarence Thomas's dissent, which would make citizenship turn on whether a child's parents were domiciled in the United States, rather than on the older and considerably plainer question of whether they are subject to its laws.

That is a strange move for a textualist. The clause in question does not say domiciled. It says subject to the jurisdiction thereof, a phrase with a long and well-documented meaning. To get from there to domicile requires exactly the sort of purposive, historically inflected reasoning that textualism was invented to rule out.

The door he left open

He did leave himself an exit. Writing separately, Gorsuch suggested that immigrants without legal status might become domiciled here over time, which would mean at least some of their children still qualify for citizenship. It is a real limitation on a harsh rule, and it is doing an enormous amount of work in a case where the alternative was a categorical bar.

But look at what the concession actually concedes. Having replaced a bright constitutional line with a fuzzy factual test, he then softened the fuzzy test with a further fuzzy test. Whatever else that is, it is not the jurisprudence of a man who thinks the words settle the matter. It is line-drawing, done by a judge, according to how much hardship he is willing to sign his name to.

What a method is for

The point of committing to an interpretive method is that it constrains you. It is supposed to produce results you dislike often enough that observers can tell the method is real. Bostock was that proof, once. A single instance, six years ago, in a career now well into its second decade.

When the same method reliably produces the preferred outcome in every genuinely hard case, it has stopped being a constraint and become a vocabulary — a way of describing conclusions reached by other means. Gorsuch has not renounced textualism. He has demonstrated how accommodating it can be in a year when the party asking for the ruling is the one that put him on the Court.

That is not a scandal, and nobody should pretend it is unique to him. It is simply the end of a useful fiction, and the correct response is to stop being surprised. The next time a Gorsuch opinion is described as unpredictable, the burden should be on the person making the claim.