Justice Samuel Alito is evidentially toting around an old grudge.
At a Thursday night event at the Antonin Scalia Law School at George Mason University, he had harsh words for the two conservative justices who joined the majority in Bostock v. Clayton County.
The 2020 opinion said that the Civil Rights Act of 1964, which prohibits sex-based discrimination, extends to gay and transgender workers. Justice Neil Gorsuch wrote the majority opinion, in which he was joined by the liberals and Chief Justice John Roberts.
Speaking via a video feed Thursday, Alito called Gorsuch a “colleague and friend,” but said that grounding the decision in the text of the 1964 law was “in my view indefensible,” according to the Washington Post.
“It is inconceivable that either Congress or voters in 1964 understood discrimination because of sex to mean discrimination because of sexual orientation, much less gender identity,” Alito said. “If Title VII had been understood at that time to mean what Bostock held it to mean, the prohibition on discrimination because of sex would never have been enacted. In fact, it might not have gotten a single vote in Congress.”
His disdain for the opinion has long simmered.
“The Court’s opinion is like a pirate ship,” he wrote in his dissent. “It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated — the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”
Alito wasn’t the only conservative enraged by the decision, and by Gorsuch and Roberts’ defections.
“All those evangelicals who sided with Trump in 2016 to protect them from the cultural currents, just found their excuse to stay home in 2020 thank to Trump’s Supreme Court picks,” seethed conservative radio host Erick Erickson on Twitter.
“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,” bemoaned Carrie Severino, president of the right-wing Judicial Crisis Network.
While Alito was relitigating the old disagreement, protesters were posted up outside of the event to either celebrate or condemn a much fresher battleground: the justice’s leaked draft majority opinion overturning Roe v. Wade.