Even then, the employees in these cases might still have
been favored to prevail. At that point, Justice Kennedy
was still on the bench, and he had authored many of the
trail-blazing decisions expanding LGBTQ rights, including
Obergefell v. Hodges in June 2015, concluding that same-sex
couples had a federal constitutional right to marry. (Ken-
nedy had been appointed by President Ronald Reagan, who
had won 58.8 percent of the popular vote.) But Kennedy re-
signed in June 2018 and Trump nominated staunch conser-
vative Kavanaugh, approved by the Senate in October 2018.
With Kennedy out and Kavanaugh in, some observers see the
LGBTQ employees’ prospects in these cases as bleak. Where will
they find a fifth vote? Zarda’s co-counsel, Gregory Antollino of
New York, professes to “feel confident” that the employees’ textu-
alist arguments will carry the day with at least one member of the
conservative faction. “We believe we can get Kavanaugh, Gorsuch,
or [Chief Justice John Roberts, Jr.]” he claims.
But if Antollino is wrong, the chief justice will have a hard time
softening the blow to the Court’s perceived legitimacy. In the past,
he has striven mightily to moderate the Court’s rightward shift,
in an apparent effort to preserve the institution’s aura of being
above the political fray. He has crafted miraculous compromis-
es where few had imagined any was possible—most famously
when he agreed with conservatives that the Affordable Care Act
violated the Constitution’s Commerce Clause, yet joined liberals
to uphold it under the Taxation Clause.
It’s often said that, among the three branches of government, the
Supreme Court is unique in that its legitimacy depends on its abili-
ty to hold itself above the political fray. Its members are not elected;
as a body, the Court has no power to enforce its own rulings, so it is
entirely dependent on the goodwill of the other branches to carry
out its proclamations. (“It has no influence over either the sword
or the purse,” as Alexander Hamilton famously put it in Federalist
No. 78.) Its legitimacy, therefore, hinges on its ability to persuade us,
through force of reason, that its decisions flow from neutral princi-
ples and precedents. Justice Scalia spent much of his judicial career
trying to craft and enshrine conservative rules of interpretation
that he believed would enable judges to do just that.
In this case, the justices may need to decide whether they want to
be conservatives in the jurisprudential sense, or in the political one.Ơ Roger Parloffis a regular contributor to newsweek and yahoo
finance. He has also been published in the new york times,
propublica, new york magazine, and newyorker.com. For 13
years he was a staff writer at fortune Magazine.COURTSIDE SEATS
Then-Supreme Court
nominee Judge Neil
Gorsuch (far left) on
Capitol Hill in 2017; Jim
Obergefell (left) was
married to his husband
John Arthur, shortly before
Arthur died of ALS, and
Obergefell ɿled suit so
he could be listed as
the surviving spouse.2014
In December, Attorney
General Eric Holderin-
VWUXFWHG-XVWLFH'HSDUW-
ment staff that, in light of
evolving Supreme Court
rulings, Title VII should
be understood to ban
discrimination on the
basis of gender identity.2015
,Q-XO\WKHEqual Em-
ployment Opportunity
Commission, reversed
LWVSULRUSRVLWLRQɿQGLQJ
that discrimination on
the basis of sexual orien-
tation violates Title VII.2017
In April, in Hively v.
Ivy Tech Community
College of Indiana,
the US Court of Appeals
in Chicago, reversed
itself and became the
ɿUVWIHGHUDODSSHDOV
court to rule that Title
VII bans discrimination
on the basis of
sexual orientation.2017
In October, Attorney
General Jeff Sessions
rescinded the Holder
memo of 2014, instruct-
ing staff that Title VII
does not encompass
discrimination on the
basis of gender identity.