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Supreme Court Expands LGBTQ Rights

You may be wondering why Neil Gorsuch, a Conservative Supreme Court justice, wrote the majority opinion in this week’s landmark ruling for LGBTQ rights. The Supreme Court has rules that dictate which justice writes for the majority. The most senior justice voting in the majority makes the assignment, and can assign the responsibility to him- or herself. If the chief justice (Justice Roberts) is in the majority, he makes the assignment, as he did here.

Some are saying that the reason Roberts voted with the majority was that Gorsuch already had indicated that he was with the Liberals on this issue. Rather than let RBG assign it for a wider reach by one of the Liberal judges, Roberts who as Chief Justice is considered the most senior by virtue of his role, got to assign it to Gorsuch, who gave it a fairly narrow reading.

Has Justice Gorsuch turned into another David Souter or Harry Blackmun? Justices Souter and Blackmun were appointed by Republican Presidents, but often ruled in favor of Leftist positions. Blackmun started out as a Right-leaning justice, ruling in lockstep with Warren Burger. But over time, he moved hard Left, authoring Roe v. Wade. It remains to be seen what course Justice Gorsuch will take.

One of the factors that may have influenced Justice Gorsuch here is that the Supreme Court generally dislikes extreme societal shifts. As the Court seemingly shifts to the Right, with the appointment of Republican Presidents, certain of the judges on that side tend to shift toward the middle. We’ve seen that repeatedly over the Supreme Court’s history.

This may have something to do with stare decisis, the legal principle of determining points in litigation according to precedent. Or it may have something to do with balance of powers among the Courts, the Congress and the Executive.

The transition from the Warren to the Burger Court was the most important Supreme Court shift of my lifetime. This occurred during the Nixon Administration. Nixon appointed four justices to the Supreme Court. The expansion of individual rights and privileges slowed with that shift.

Justice Gorsuch was appointed by President Trump to a Right-leaning Court. On particular cases, like this one, the Left can sway one or more of the Centrist Right judges from time to time. Once Justice Gorsuch agreed to join the majority, Chief Justice Roberts, who was also with the majority, assigned Gorsuch to write the opinion. He probably did this to give the opinion political cover.

I hope this helps you understand why Justice Gorsuch wrote the majority’s opinion in the Bostock case.

If you need more information or think you need an attorney, please contact Evan Aidman, Esq..

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