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I’ve run across several excellent critiques of Justice Gorsuch’s majority opinion in
Bostock v. Clayton County (on top, of course, of the compelling dissents by Justices Alito and Kavanaugh). A non-exhaustive list:
1. In this
Law and Liberty essay, law professor John McGinnis, who is very high on, if not at the top of, my list of best constitutional commentators, explains that Gorsuch’s opinion “embraces a desiccated literalism over a common-sense understanding of a text’s public meaning”:
The only way Gorsuch can avoid conceding that Alito’s is a better interpretation is to read the language as a kind of computer code, divorced from the understanding that people would have given to the phrase “discriminate . . . because of the individual’s sex.” …
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In
America on Trial: A Defense of the Founding, author Robert Reilly makes the same mistake as many other conservative scholars: In his desire to win the argument, he sacrifices his audience.
He obviously intends to set the record straight about the American founding and address increasingly popular misunderstandings from both the progressive left and the traditionalist right that either see it as a power grab of white landowners or the beginnings of an amoral, relativistic modernist society. Reilly stakes his claim the American founding was a continuation of the constitutionalist, natural law tradition of which all Americans can be proud.
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