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Nicolais: Neil Gorsuch’s opinion presents another lesson in judicial independence

We should all stop expecting judges to act like pawns for the politicians who appoint them

A nearly universal reaction to the equal rights victory for the LGBTQ community in Bostock v. Clayton County has been shock and surprise that Justice Neil Gorsuch, a Colorado native, wrote the opinion.

In an otherwise wonderful story of perseverance and triumph, that shock remains a source of tremendous disappointment and detracts from a broader understanding of how the independent judiciary is supposed to work.

It would be great service to our country’s citizenry if reporters and pundits stopped treating judges as pawns of the politicians who appointed them.

Mario Nicolais

Over the past five years as a columnist, I have purposefully worked to highlight this very issue. I wrote about a Democratically appointed Colorado Supreme Court Justice who upheld the rights localities to oppose state fracking bans.

I highlighted a seven-member court filled by five Hickenlooper appointees turning the then-governor “down cold” over the Taxpayer’s Bill of Rights. I championed conservative Chief Justice John Roberts’ defense of the independent judiciary against attack by President Donald Trump. I hailed Justice Ruth Bader Ginsburg for putting legal principle over personal belief.

And just over a month ago I praised the textualist interpretation by an Obama-era U.S. 10th Circuit Court of Appeals judge defending the right of Democratic presidential electors to cast ballots of conscience.

Justice Gorsuch’s opinion is just one more example of a judge doing his job and putting the law above political posturing.

As a longtime conservative activist for LGBTQ equality in Colorado, I’ve waited nearly a decade for a conservative judge to pick up this torch. I have always believed that principled application of conservative jurisprudence necessarily led to outcomes like the one Gorsuch, joined by Roberts, arrived upon.

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Most obviously, Gorsuch applied a textualist approach to the case. This is a hallmark judicial ideology for conservative judges. And thankfully, it has also received excellent coverage by journalists including The Colorado Sun’s own Mike Littwin.

Much less focus has been on how Gorsuch employed a dedication to individual rights, another staple of conservative philosophy, to overcome otherwise thorny legal brambles in Title VII.

In his analysis, Gorsuch carefully walked through the statute to conclude that it “tells us three times – including immediately after the words ‘discriminate against’ – that our focus should be on individuals and not groups.” 

In response to the argument that an employer could discriminate if it treated men and women similarly, he again wrote, “This statute works to protect individuals of both sexes from discrimination, and does so equally.”

As a conservative who has personally rejected the group-rights oriented label “gay rights activist” in favor of an individually centered “equal rights advocate,” I once testified before a legislative committee that it is a “principle that we live by as conservatives, that each individual has equality” before the law. Reading the same principle espoused by Gorsuch elated me.

More importantly, it allowed Gorsuch to highlight disparate actions taken against individuals based solely on their sex as examples of unlawful acts: “Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and one is a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer necessarily discriminates against for traits or actions it tolerates in his female colleague.”

Gorsuch used a similar example to decry discrimination against transgender individuals.

Despite the firmly rooted conservative principles at work, and in conjunction with the rebuke Roberts delivered to DACA opponents, the opinion drew the ire of the man who appointed Gorsuch. Trump characterized the opinions as “shotgun blasts into the face of … Republicans” and promised to appoint new, conservative justices.

It seems Trump, like many others, still does not understand that our best judges do not abide by any political whim. Or, as Gorsuch eloquently put it in his opinion, “The people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms on some extratextual consideration.”

It is a lesson worth learning for us all.


Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on Twitter: @MarioNicolaiEsq


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