Conservative Supreme Court justices disagree about how to read the law.

Byline: Associated Press

With a 6-3 majority, conservative justices on the Supreme Court may appear poised to hand down decisions that the Republican presidents who appointed them would applaud.

As a political scientist who has published several books on law and politics, I know it's true that the political affiliation of the president who appointed a justice is a powerful indicator of how that justice will vote.

But ideology does not explain everything. Not all cases divide neatly along partisan lines, and, what's equally important, Supreme Court decisions consist of more than votes. They also set forth judicial reasoning, which offers vital clues to differences in how justices read the law and how they might rule in future cases.

Often, conservative justices are associated with a doctrine of legal interpretation called "originalism," which looks to the meaning of a law's language when it was enacted to determine what Congress intended to achieve. So, in interpreting the Eighth Amendment's prohibition on "cruel and unusual punishment," an originalist would try to understand what "cruel and unusual" meant when the Bill of Rights was adopted in 1791 as opposed to now.

Originalism may seem straightforward in the abstract, but it can take several forms in practice, and that's where members of the court's conservative majority sometimes part ways. This has happened in two recent cases that illustrate how internal divides among that six-justice majority may be more consequential than the divisions between them and the three-justice liberal minority that garner so much attention.

Gorsuch's literal approach in Bostock

A case called Bostock v. Clayton County, decided in 2020, consolidated three lawsuits against employers who allegedly fired workers for being gay or transgender. The workers all sued under Title VII of the Civil Rights Act of 1964, claiming sex discrimination.

In the decision, the conservatives split. Chief Justice John Roberts and Associate Justice Neil Gorsuch joined the court's four liberals at the time Associate Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor to rule in favor of the workers. The remaining conservatives, Samuel Alito, Brett Kavanaugh and Clarence Thomas, disagreed.

Gorsuch wrote the majority opinion. He started by looking at the definition of the word "sex" when the law was passed in 1964. Quoting the employers' arguments, which relied on dictionaries from that time, Gorsuch assumed...

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