Taking Stock of Bostock: The Dissents
Part II of III: The dissents by Justices Alito and Kavanaugh, and their mistakes
This is Part II of a three-part series, discussing the opinions in Bostock v. Clayton County and the reactions to them. Part I briefly discusses the popular reception and context for the decision and then dives into Justice Gorsuch’s majority opinion in detail. Part II unpacks the errors in the dissenting opinions penned by Justices Alito and Kavanaugh, and the strikingly different approaches and tones those opinions take. Part III will discuss the (overheated) reactions to the opinion in quarters of the U.S. right wing.
Kavanaugh, Dissenting
In terms of the dissents, it is perhaps best to start with Kavanaugh’s, as his is fairly direct. He begins by asking “who decides” whether Title VII covers the discrimination at issue, and concludes with his answer: “I believe that it was Congress’s role.” His analysis echoes the reasoning of the judges who reached the same result in the underlying cases, such as Judge Lynch’s dissent in the Second Circuit. Critically, he concedes that Gorsuch’s opinion is broadly correct: the…
