Mary Margaret Olohan, DCNF

Supreme Court Justices Samuel Alito and Brett Kavanaugh condemned the Supreme Court’s decision Monday that federal law protects LGBT employees from discrimination.

Chief Justice John Roberts and Justice Neil Gorsuch joined the court’s four liberal judges in a landmark ruling that involved a 1964 civil rights law that barred discrimination of employees based on sex, according to USA Today. The Supreme Court examined whether the statutory protections should be understood to include both sexual orientation and gender identity.

The Supreme Court ruled in a 6-3 decision that federal law protects LGBT employees from discrimination through focusing on the text of Title VII, language prohibiting discrimination “because of” sex. Title VII may be enforced as long as sex is part of the discrimination, the justices said.

Alito, Kavanaugh, and Justice Clarence Thomas all dissented.

Alito accused the court of “usurping the constitutional authority of the other branches.”

“A more brazen abuse of our authority to interpret statutes is hard to recall,” he said in his dissent. The Supreme Court justice also noted that the judges attempted to frame their decision as “the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia.”

“But no one should be fooled,” Alito wrote. “The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice [Antonin] Scalia excoriated — the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”

Kavanaugh also emphasized that the decision is an “important victory achieved today by gay and lesbian Americans,” but he also picked apart the Supreme Court ruling and emphasized that “we are judges, not members of Congress.”

“And in Alexander Hamilton’s words, federal judges exercise ‘neither Force nor Will, but merely judgment,’” Kavanaugh wrote. “Under the Constitution’s separation of powers, our role as judges is to interpret and follow the law as written, regardless of whether we like the result. Our role is not to make or amend the law. As written, Title VII does not prohibit employment discrimination because of sexual orientation.”

Justice Scalia would be disappointed that his successor has bungled textualism so badly today, for the sake of appealing to college campuses and editorial boards.

This was not judging, this was legislating—a brute force attack on our constitutional system. (1/x)

— Carrie Severino (@JCNSeverino) June 15, 2020

The Monday ruling is brought about by “judicial dictate” rather than a “hard-earned victory won through the democratic process,” Kavanaugh added, describing the Supreme Court’s ruling as “latching on to a novel form of living literalism to rewrite ordinary meaning and remake American law.”

“Under the Constitution and laws of the United States, this Court is the wrong body to change American law in that way,” he added. “The Court’s ruling ‘comes at a great cost to representative self-government.’ And the implications of this Court’s usurpation of the legislative process will likely reverberate in unpredictable ways for years to come.”

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