Will the Supreme Court pour gasoline on the fire?

Americans may soon have something new to smash windows over.

When a case is really close, really close, on the textual evidence, and I -- assume for the moment I’m … with you on the textual evidence. It’s close, okay? We’re not talking about extra-textual stuff. We’re —we’re talking about the text. It’s close. The judge finds it very close.

At the end of the day, should he or she take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that—that Congress didn’t think about it—and that—that is more effective—more appropriate a legislative rather than a judicial function? That’s it. It’s a question of judicial modesty.

Neal Gorsuch at oral argument in October over three cases addressing whether civil rights law prohibits job discrimination based on sexual orientation or gender identity.

I’m not much good at reading tea leaves from Supreme Court oral arguments, but many people interpreted these comments last fall by a Trump-appointed associate justice to mean that Neal Gorsuch may join the Democratic-appointed minority in ruling that Title VII of the Civil Rights Act protects lesbian, gay, bisexual, and transsexual individuals from workplace discrimination. The decision will be handed down in June.

Writing in Politico Magazine last fall, University of Michigan law professor Richard Primus suggested that Gorsuch was in torment because voting against LGBT protections would contradict his emphatically “textualist” legal doctrine, given that sexual orientation and gender identity pretty obviously have a great deal to do with sex, on which basis the statute explicitly forbids discrimination.

But of course the words that jump out today aren’t “textual evidence” so much as “massive social upheaval.”

The upheaval Gorsuch fretted about prompting, according to Primus, was by anti-gay social conservatives. At the moment, however, the United States is experiencing social upheaval, much of it violent, from African Americans and left-of-center protesters against the videotaped police killing of George Floyd. There are, to be sure, even more violent hard-right counter-protests going on, too, including, by hard-right “Boogaloo Bois” (white nationalist antigovernment types), “accelerationists” (race war provocateurs), and other hate groups that have blossomed during the presidency of Donald Trump. But I’m not aware that these folks harbor much opposition to LGBT rights. (The relationship between the alt right and the LGBT community is extremely complicated, but my sense is that white supremacists’ only real beef against LGBT folks is that the Caucasian ones aren’t doing their bit to produce white offspring.)

It seems odd that Gorsuch would not consider that if he voted against LGBT protections he might prompt social upheaval from LGBT groups, from the left, and perhaps even from some libertarian conservatives. But assuming Gorsuch possesses a television, or a computer, or a subscription to a daily newspaper, it seems likely he’s better able to grasp that possibility today. If so, perhaps he will decide not to jettison his textualist philosophy after all, and use his swing vote to secure employment rights for LGBT people.

Or perhaps Gorsuch will decide that because the text of the 1964 Civil Rights Act does not include the term “LGBT,” he can still claim to be a textualist in voting against LGBT rights, in the spirit of those grade-school gym teachers who relish admonishing, “I didn’t say Simon Says.” It never pays to stick your neck too far in out predicting what a Supreme Court justice will do. But if the high court rules against LGBT protections, here’s one prediction I will make: The civil unrest that’s spread across America will open a new front that draws in fresh combatants.