At least, that was the impression that emerged after arguments in three cases the Supreme Court heard on Tuesday, where Gorsuch appeared to be the swing vote. Two of those cases, Altitude Express Inc. v. Zarda and Bostock v. Clayton County, ask whether a worker can be fired for their sexual orientation. The third, R.G. & G.R. Harris Funeral Homes v. EEOC, asks whether a worker can be fired because of their gender identity.
The central tension in these three cases arises from the fact that the text of a federal civil rights law — Title VII of the Civil Rights Act of 1964 — is written expansively, so expansively that even Gorsuch seemed to acknowledge at some points during Tuesday’s oral argument that the text of the law favors a victory for the gay and trans plaintiffs.
Gorsuch, for his part, has longed claimed to be a “textualist” — meaning that he believes that the meaning of the law should turn on its words and not on what Congress thought it was doing. Tuesday’s arguments suggest that he may be an honest textualist in this case, although it is far from certain how he will vote.