GERBER: Legal Conservatives Should Applaud The Supreme Court’s Bostock Decision

SAUL LOEB/AFP via Getty Images

Scott Gerber Contributor
Font Size:

In a remarkable speech on the floor of the U.S. Senate on Tuesday, Sen. Josh Hawley (R-MO) called Monday’s U.S. Supreme Court decision in Bostock v. Clayton County “the end of the conservative legal movement.” A fair argument can be made that Bostock actually marks a new beginning for the movement.

In Bostock, the nation’s highest court held that an employer who fires an individual employee merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. Justice Neil Gorsuch, a conservative, wrote the opinion for the 6-3 majority. Chief Justice John Roberts, also a conservative, joined Justice Gorsuch’s opinion in its entirety. Conservative Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh dissented.

Senator Hawley is a very bright person. He received his Bachelor of Arts degree in history from Stanford University and his law degree from Yale. After law school, he clerked for Judge Michael W. McConnell of the U.S. Court of Appeals for the Tenth Circuit and for Chief Justice Roberts at the U.S. Supreme Court. He also worked for a prestigious Washington law firm and a think tank. In 2011, he returned to his home-state of Missouri to become a law professor before being elected Attorney General of that state. In 2018 he defeated two-term Democratic incumbent U.S. Senator Claire McCaskill and, at 40, he is currently the youngest member of the U.S. Senate.

But Senator Hawley is wrong to say that “if you can invoke textualism and originalism in order to reach such a decision” about LGBTQ rights, as Justice Gorsuch did in his opinion for the Court in Bostock, “then textualism and originalism and all of those phrases don’t mean much at all.”

Apparently, as smart as he is, Senator Hawley doesn’t realize that there are two types of originalism.

“Originalism” is a theory of constitutional and statutory interpretation that came to prominence during the Reagan administration as an alternative to the so-called notion of a living constitution embraced by progressive judges and law professors. The dominant strand of originalism, and the version that Senator Hawley was talking about during his speech on the Senate floor, dictates that judges may legitimately recognize only those rights specifically mentioned in the text of a law, or ascertainably implicit in its structure or history. In all other cases, conservative originalists argue, the majority is entitled to govern — to make moral choices — through the political process.

“Liberal originalism,” by contrast, maintains that federal law should be interpreted in light of the political philosophy of the Declaration of Independence. Liberal originalism rejects both conservative originalism and the notion of a living constitution on the ground that they are post-hoc rationalizations for preconceived political results.

Liberal originalism insists that conservative originalists mischaracterize the Constitution as establishing a majority-rule democracy, a mischaracterization that is also made by many legal theorists of progressive political views. Because of the Framers’ desire to avoid what Elbridge Gerry called the “excess of democracy,” they created a republican form of government, not a majority-rule democracy. And in that republican form of government, the judiciary is to play a central role: chief guardian of the unalienable rights of the American people, especially of individuals and minorities. Succinctly put, liberal originalism employs a conservative methodology, but arrives at liberal results, as “liberal” is understood in the classic sense of seventeenth and eighteenth century natural rights philosophy. “To secure these rights,” Thomas Jefferson proclaims in the Declaration of Independence, is the reason that “governments are instituted among men.”

Monday’s Bostock decision by the Supreme Court is surely correct as a matter of liberal originalism. Indeed, it is difficult to imagine a law that would be more inconsistent with the natural rights of the American people than a law that failed to protect an employee’s personal choice about sexual orientation or gender identity. After all, in the United States every individual is supposed to enjoy the unalienable right to freely direct the course of his or her life, including his or her sex life.

I admire Senator Hawley for speaking his mind this week with such passion, grace and courage. But Bostock was not the end of the conservative legal movement. It was a return to America’s foundational commitment to equality and individual autonomy. Conservatives should applaud the Supreme Court for recognizing it.

Scott Douglas Gerber is a law professor at Ohio Northern University and an associated scholar at Brown University’s Political Theory Project. His nine books include “To Secure These Rights: The Declaration of Independence and Constitutional Interpretation.”