Justice Alito’s Scalian Fury

This past term at the Supreme Court offered some surprises with several controversial cases decided. We have touched on Chief Justice John Roberts’ role in these decisions, but we cannot neglect the resistance offered by U.S. Supreme Court Justice Samuel Alito this term. His dissents were fiery and often embraced a Scalia approach with combative, but well-grounded legal reasoning unafraid to call out the majority’s perceived drift from the Constitution. In general, Justice Alito has been a relatively stalwart Constitutionalist during his tenure unlike that of the Chief, a fellow appointee of former President George W. Bush. We will break down Alito’s dissenting opinion in perhaps the most controversial case, Bostock v. Clayton on the redefinition of Title VII to include sexual orientation as a protected class.

This has been rightly billed as among the most controversial if not the most controversial case during this Supreme Court term. Justice Neil Gorsuch, in writing for the majority composed of Chief Justice Roberts, Justice Ginsburg, Justice Breyer, Justice Sotomayor and Justice Kagan redefined the scope of Title VII employment discrimination to include sexual orientation despite not being explicitly defined in the statute. Justice Gorsuch attempted to display in his reasoning that on the basis of “sex” that is provided in the statute naturally leads to a definition of sexual orientation based on the discriminatory conduct stemming from the sex choice of claimant’s relational choosing. This majority opinion is vulnerable to substantial criticism as even those voting in the majority adopted different reasoning to support the outcome in addition to the expected scathing challenges of the dissenters.

Facts and Arguments

In Bostock, this matter combined two cases – one a county employee in Georgia was fired for participating in in a gay softball league and the second an employee was fired from working in a funeral home for being transgender. Gorsuch emphasized that sex is a necessary factor in the employer’s decision making and pointed out that the employer maintains expectations of the male and female and considered the “traits” of their sex’s expected behavior before making the discharge decision. He finds that “homosexuality and transgender status are inextricably bound up with sex”.

Justice Alito then provided a scathing dissent challenging the premises of Justice Gorsuch’s interpretation. He opens with explaining that the Supreme Court has usurped authority of other branches of government, namely here the legislature to rewrite a statute. He classifies this action as “preposterous” and invokes memories of energetic Scalia dissents. He even cited to Scalia’s legacy and work in his book “A Matter of Interpretation” by plainly stating that this is an opinion Scalia would have “excoriated––the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.” This also reflects some of Judge Robert Bork’s view that we have spoken about in prior pieces to deter judges from relying on new societal drifts to promote activist opinions.

In taking aim at Justice Gorsuch’s argument that the orientation is intrinsic to sex he relies on the following example: “an employer can have a policy that says: ‘We do not hire gays, lesbians, or transgender individuals.’” He adds that “an employer can implement this policy without paying any attention to or even knowing the biological sex of gay, lesbian, and transgender applicants.” He concludes that “an employer cannot intentionally discriminate on the basis of a characteristic of which the employer has no knowledge.” Justice Alito is arguing that this proves that orientation is not intrinsic to sex, therefore it is impossible for an employer to base a discharge decision on sex if orientation is the given trait provided in the policy. They are clearly two separate classes.

Another strong argument made by Justice Alito is in the context of linguistics. He articulates that the phrase “sex” is used in several modifiers such as sexual intercourse. Is this now protected under Title VII? Deriving from Justice Alito’s analysis here, let us consider the following example. Could a plausible action be brought under Title VII by an employee that was discharged for sleeping with the CEO’s wife? Per Justice Gorsuch’s assessment there would be protection there as it is connected with the concept of sex as one’s sex is being acted out necessarily with regard to orientation. This “sexual” intercourse would seemingly fit under the umbrella of “sex” as a simple noun. The door that has now been opened could seemingly lead to more outrageous ends based on a reading that adds substance that was not intended when the statute was passed.


Justice Alito raises the concern that this standard can now lead to a slippery slope and prove detrimental in other areas of society. One area he pays special attention to is the concept of professional sports. A path has perhaps been made for a case in which an individual with clearly identifiable masculine traits developed from birth considers a transition and new classification to a woman, thereby making himself eligible to participate in women’s professional sports such as basketball. This would then leave the various sports owners in a difficult position and perhaps lead to a Title VII action under the sex classification. Calling into question the fairness and legitimacy of the league to the naturally women participants would create an array of problems and in fact be detrimental to these women. The statue had also intended to protect women and this directly compromises this purpose. This stems from Gorsuch’s broad interpretation of what constitutes sex to now include transgender and transitioning individuals. Adherence is no longer firmly with regard to birth traits, but rather has opened a conflict between the physical characteristics and the “view” one identifies with from a mental standpoint.  Unnecessary complexities have now been added to the equation and will now pose significant and unclear hurdles. What is the balancing test for the physical vs. the mental sex expectations? How long has one been fully transitioned? Is there a time frame for that in order to be accepted as full female or full male? Does this raise the specter of fraud- can one transition mid-way through a fledgling NBA career and switch to WNBA right away if going through the appropriate administrative channels? The Bostock decision has left open a wide range of possibilities and future complications for adjudication of Title VII.

Justice Alito was also concerned about the religious impact stemming from the issue.  While he acknowledges that faith institutions have pre-existing defenses such as the ministerial exception that protect them in some situations if teachers are communicating a lifestyle contrary to the faith’s message, claims will still be brought. Claims based on failure to hire or unjust discharge based on such issues as sex reassignment and types of romantic relationships remain possibilities, especially if the concept of minister has an unclear application to certain employees. The lower courts will have to overcome these hurdles, but he did note that the Supreme Court will soon be addressing these issues.

State Law

Finally, drifting away from Justice Alito’s opinion, there is another plausible argument that can be made that strongly challenges the underlying principles of the Bostock opinion. Nineteen states[1] have passed employment discrimination statutes that maintain a separate class for sexual orientation under the law. This is not a small minority of states and supports the view that at the state level there was not widespread intent to incorporate orientation claims under the umbrella of sex with regards to employment discrimination. It proves this is yet another example where judicial minimalism should have been given paramount consideration considering the clear text of Title VII and the established practice of several states understanding orientation as a separate and distinct class.


Overall, the Bostock opinion was surprising to some and has raised more questions than answers with the future adjudication of Title VII claims. It will have a monumental impact, but the questions that it creates will continue to be adjudicated in several forms. It will unnecessarily complicate this area of litigation and the ensuing debate returns us back to a seminal issue. When judges drift from the original intent and textual interpretation, they find themselves in dangerous territory and risk assuming roles best left to other branches of government. One could argue that this is what in fact occurred here. A major takeaway from this term and most specifically this decision, however, is the boldness of Justice Alito to embrace a bit of the Scalian fury to challenge what he perceives as judicial activism. The Scalia legacy is alive and well and this term Justice Alito wholly embraced it.

[1] https://www.ncsl.org/research/labor-and-employment/sexual-orientation-in-employment-discrimination-laws.aspx