Gorsuch first defected from the conservative bloc in the 2018 decision Sessions v. Dimaya, joining the liberals to hold that a deportation statute was unconstitutionally vague. In his separate concurrence, the justice wrote that judges have a duty to nullify laws that fail to give ordinary people fair notice of the conduct they punish. “Vague laws,” Gorsuch intoned, “invite arbitrary power,” allowing “police and prosecutors” to enforce their own “subjective” sense of what’s forbidden. In the 2019 case United States v. Davis, he joined the liberals to invalidate yet another vague statute, this time penning the majority opinion. “In our constitutional order,” Gorsuch declared this time around, “a vague law is no law at all.” His opinion led Justice Brett Kavanaugh, in dissent, to accuse his colleague of driving the court “off the constitutional cliff.”
It turns out Gorsuch’s left-leaning criminal law decisions were just a warm-up act for the two blockbusters he handed down in 2020. In the first of these, Bostock v. Clayton County, Gorsuch found that the Civil Rights Act’s bar on sex discrimination in the workplace protects LGBTQ people. Or, as his put it succinctly: “An employer who fires an individual merely for being gay or transgender defies the law,” because “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Gorsuch swatted down the dissenters’ argument that the Civil Rights Act could not possibly protect LGBTQ employees because Congress did not contemplate such individuals when it passed the law in 1964.
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