Gorsuch Paves Way for Attack on Affirmative Action

(Bloomberg Opinion) -- Does the Supreme Court’s decision in Bostock v. Clayton County, Georgia, forbidding employment discrimination on the basis of sexual orientation, also spell the end to affirmative action?

That may sound like a crazy question. But Justice Neil Gorsuch’s opinion, emphasizing the need to follow the “original public meaning” of legal texts, gives a real boost to opponents of affirmative action. In fact, a passage in that opinion seems as if it was explicitly meant to provide that boost.

Here’s the background. The key provision of Title VII of the Civil Rights Act of 1964 makes it

 unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.

That provision was the governing text in Bostock. It is also the foundation for legal challenges to racial preferences in employment, even if they take the form of voluntary affirmative-action programs. According to those who challenge racial preferences, discrimination is discrimination — period.

In 1979, the Supreme Court ruled that notwithstanding its text, Title VII of the Civil Rights Act of 1964 permits affirmative action. The court referred to a “familiar rule that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers."

It emphasized that the primary concern of Congress, back in 1964, was with “the plight of the Negro in our economy." It said that the purpose of Title VII was to open employment opportunities for African Americans.

In light of that purpose, and the legislative history of the statute, the court concluded that voluntary affirmative-action plans, “designed to break down old patterns of racial segregation and hierarchy,” would be permitted. And in later cases, the justices have accepted that basic conclusion and allowed voluntary affirmative-action plans, benefiting both women and African Americans.

Interpreting the same statute, Justice Gorsuch’s opinion comes from a different legal universe. It emphasizes the text, not the intentions of those who wrote it. It does not speak of the law’s spirit or purposes. If you read Gorsuch, you would think that affirmative-action programs are doomed, because they plainly discriminate because of race.

Which brings us to the key passage. As Justice Gorsuch put it, to discriminate is to treat an “individual worse than others who are similarly situated.” In what might easily be taken as a slap against affirmative action, he added that the text means that the judges’ “focus should be on individuals, not groups.”

After all, Congress “might have said that there should be no ‘sex discrimination,’ perhaps implying a focus on differential treatment between the two sexes as groups.” Congress might also “have forbidden only ‘sexist policies’ against women as a class. But, once again, that is not the law we have.”

With just a little rewriting, Gorsuch’s arguments could be transported into a majority opinion in the near future, overruling the 1979 decision and putting affirmative-action programs entirely off-limits. His emphasis on text rather than purpose, and on individuals rather than groups, seems tailor-made for those who seek to challenge such programs.

That raises some obvious questions.

First: Why did the four justices usually characterized as liberal — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — join Gorsuch’s opinion? Why didn’t they write separately, questioning his textualism?

Speculation is hazardous, but it’s reasonable to guess that they were greatly pleased with Gorsuch’s vote and the outcome in Bostock, and they didn’t want to jeopardize it by fussing about Gorsuch’s reasoning.

Second: Is affirmative action really in deep jeopardy? If the court is going to rule it out of bounds, it will have to overrule its 1979 decision. Some of the justices might be inclined to think that the decision was wrong at the time, but that precedents deserve respect.

Maybe so, but don’t bet on it. Those who live by the sword die by the sword. Textualism is a sword. If the text of Title VII condemns discrimination on the basis of sexual orientation, it might well be taken to condemn affirmative action as well.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

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