By John Lindstrom
Publisher
Posted: October 10, 2019 4:03 PM

Trying to guess what the U.S. Supreme Court will do based simply on oral arguments is all too often a question stuffed in a riddle blanketed by a problem smothered in a quandary and finally swallowed by an enigma.

Thus it was this week in the oral arguments in R.G. and G.R. Harris Funeral Homes v. EEOC, the case arising out of Garden City where Aimee Stephens, a transgender woman, charged she was fired after she told her employers at the homes she would present as a woman and dress in women's clothes.

In one reading, it seemed the court was largely leaning Ms. Stephens' way. In a second reading the seemingly eternal bathroom question loomed large and threw the matter into doubt.

However, Justice Neil Gorsuch's question dealing with the "massive social upheaval" a decision in Ms. Stephens' favor would entail did lead to a bit of eyebrow raising. After all, isn't fomenting massive social upheaval something the Supreme Court is supposed to do? It doesn't seem to have had any problem doing so throughout history.

What is doubly interesting is how Mr. Gorsuch tied that question to earlier comments on how he was close to Ms. Stephens on whether federal law outlawing sex discrimination was in her favor.

After all, literally decades of Supreme Court decisions had ruled that sex discrimination dealt with all kinds of factors one had perhaps not initially considered, from questions on pregnancy to appropriate attire. Decisions not specifically aimed at sex discrimination, for example dealing with gay couples, also touched on the issue.

Mr. Gorsuch has written on judicial respect for the textual element of laws. Hence, the argument by Ms. Stephens' lawyer, David Cole, that firing Ms. Stephens for presenting as a woman when she was born a man poses an issue of sex discrimination because the decision to fire her was based on her sex clearly had resonance for many of the justices.

It was Harris Homes' lawyer John Bursch, the former Michigan solicitor general, who focused his arguments on the massive social upheaval concern. Holding for Ms. Stephens would have effects far beyond this one case, he said, or any case about firing an employee. Again, there is the bathroom question, but he added locker rooms, the makeup of athletic teams, and other issues to the debate.

Again, though, isn't creating massive social upheaval kinda something the Supreme Court does? One presumes the justices, along with the rest of the country, have heard of Brown v. Board of Education. Declaring racial segregation unconstitutional has to rank pretty high on the massive social upheaval index. So have previous decisions dealing with women's rights, with same-sex rights, with defendant's rights, with religious rights, free speech rights, and on and on.

How the court will rule on this case, we will know soon enough. What its decision will be premised on, that too will be revealed. And whenever one reads any court decision one has to remember in his classic "The Common Law" former Justice Oliver Wendell Holmes wrote a judge makes a decision and then comes up with the reasons for the decision.

Whatever the decision, whatever the reason for the decision, we can presume the court will argue it will all fit into the constitutional goal of creating a more perfect union. We can know, as well, whatever the decision many people will question whether it does in fact help perfect the union.