On this week’s Slate Plus bonus episode of Amicus, Slate executive editor Susan Matthews joined co-hosts Dahlia Lithwick and Mark Joseph Stern to discuss how this Supreme Court term changed perspectives on Justice Neil Gorsuch, the subject of Matthews’ narrative podcast series Slow Burn: Becoming Justice Gorsuch. The trio drilled down on how the Gorsuch of Becoming Justice Gorsuch does and does not align with the Gorsuch who veered even further to the right in the Trump v. Barbara birthright citizenship case and the trans sports cases. The following transcript has been edited and condensed for clarity.

Dahlia Lithwick: Now that all of Gorsuch’s votes for the term are in and logged, do you feel as if you basically still understand who he is as a justice, Susan? You came to a pretty definitive idea about him on the show. Did anything that happened at the end of June unsettle that?

Susan Matthews: One of my arguments with the whole series is that the justices have a vested interest in telling all of us, Oh, what we’re doing is law. We’re just reading the law. There’s no politics. There’s nothing to see here. I think that Gorsuch is a uniquely interesting story because the way he got onto the court itself is the best, most obvious demonstration that we are not “just reading the law” here. Politics is informing every single thing that happens.

The players are really invested in pretending that that is not the case. I think Gorsuch was in fact the perfect person to take Merrick Garland’s seat because he’s someone who is going to stand up there, with an absolutely straight face, saying, There is nothing to see here. They say that there’s no politics here, but there’s obviously politics here. About Gorsuch, specifically, I think that what I learned was that he’s great at playing that straight-faced man. He was intriguing to me because he seems like he perhaps really believes that he’s doing it right.

That’s one of the tics that comes up in his legal writings and in his posture toward everybody all the time. After spending so much time in his brain, by the end of it, I really did think, You know what? I don’t always agree with him, but he at least believes he’s doing something consistent here. This term in particular shattered that illusion for me. With the trans sports cases and with the birthright citizenship case, it’s hard to say that he hasn’t lost his way and is following politics in a way that is so legible that there’s no argument anymore.

Mark Joseph Stern: To the extent that you complimented him in the show or praised him at all, let’s go ahead and scrap that and cut it out, because after this term we can’t really pretend that there’s much to admire? Is it that dark?

Matthews: Yes, it is basically that dark. In this term, I think, we were all waiting for him to essentially reverse himself on Bostock, and he did that in the trans sports cases. But I wasn’t anticipating he would rule the way he did in birthright citizenship. I think we all thought, Well, it’s Neil Gorsuch. He’s going to be the man who says “Remember what the Constitution says,” just like he did in the tariffs case. And he did not do that.

Going back to Bostock, one of the reasons why Gorsuch established this reputation as kind of a renegade is that that was a case about employment protections, a case about gay and trans workers saying that they could not be discriminated against because of sex.

Neil Gorsuch, in a very textualist, “Let’s just read the words on the page” way, made this argument: If they’re being discriminated against because it is a man who is in a relationship with a man, and if a person is being discriminated against because it is somebody whose gender identity does not align with their sex given at birth, that is very clearly discrimination based on sex.

And he ruled in favor of the trans and gay workers. It was a revolutionary ruling at the time. It was a surprise that he came out and did that.

Stern: He wrote that Bostock supports, not undermines, the court’s conclusion in the latest trans cases, because in Bostock, everyone agreed that adverse actions against the employees was discrimination, right? Everybody agreed on the meaning of the word discrimination, and that firing or treating someone poorly because of their sex, including their gender identity or sexual orientation, was discriminatory.

Here, he said it’s actually not discrimination to tell a transgender girl, “You aren’t allowed to play on the girls’ team at school because we consider you to be a biological boy.” And he said this is fundamentally different, that “sponsoring a single-sex sports team limited to biological women or girls” is not discrimination, in his view.

That was the main differential, according to him, that distinguished these two cases. You implied earlier that Gorsuch has moved away from Bostock. I would say yes and no. I think it’s important that he continues to say “I believe in Bostock,” because that’s a decision that continues to help thousands and thousands of LGBTQ+ people every year.

I don’t want to be too cynical about this. It’s good that Gorsuch is standing by Bostock in the context of Title VII and employment discrimination. What is really not good, and what is galling and does make one quite cynical, is seeing him weirdly limit that reasoning to this one narrow context and come up with a different definition of discrimination to avoid applying the same simple logic in the context of Title IX, which uses basically the same language about discrimination on the basis of sex.

I do think the difference between 2020 and 2026 is notable. In 2020 it felt as if trans rights were on the march. It was a time of great wokeness across the country, and it felt as if LGBTQ+ rights were ascendant. In 2026 we’re in the midst of a huge anti-trans backlash, and it seems as if Gorsuch had a reason to rule for trans people and gay people in 2020 but in 2026 had to come up with a reason to rule against trans people, and he did. It’s not very convincing, because if you ask a trans girl who is told by her school, “You are not allowed to join the sports team, even though you’re in fifth grade, and it’s not even competitive, and nobody gets cut from the team, but you’re not allowed to play because you were assigned male at birth,” that sure sounds like discrimination to her. And it sure does to me as well.

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Matthews: One of the ways the justices are trying to orient themselves in this case—and I think that this perfectly aligns with the political message on the ground as well—is to say, Well, we’re not focused on the discrimination against the trans students here. What we’re actually focused on is protecting women, and that’s what Title IX is for. They’re employing this turn of phrase to act as if it is the women who are the victims of the choice to let a trans child play for the sports team they want to play for.

One of the classic Neil Gorsuchisms is that he finds these people who are not really suffering—not even in their own self-identification; they are not necessarily victims—and he paints them as victims. It’s a thing the court can do to say, We get to decide whom we’re sympathizing with and how we’re presenting all these things.

Lithwick: I also think there’s something about having a 6–3 split. You get cover from the number six in a way that you don’t from four or four and a half. The other real switch is what happens when you know you have a sure thing, which is—at least on the constitutional question here—six people giving you cover, because it means that the courage of your convictions is eternally reinforced. It mirrors so perfectly the polarization in the country to say, “If six justices think something, it must be true.”

Stern: I want to turn to the birthright citizenship case, because it’s another interesting data point here. I really felt that he was going to vote to strike down Donald Trump’s executive order, which would have prohibited birthright citizenship for the children of undocumented immigrants who are born here, and also the children of temporary visitors who are born here.

This was a really, really radical argument that the administration presented. It rejected well over 120 years of precedent and consistent practice by the federal government. And yet the administration lost only by a 5–4 vote on the constitutional question. Four justices would have upheld at least part of the order under the Constitution. And Gorsuch signed on to Justice Clarence Thomas’ dissent, arguing that the citizenship clause has this kind of secret provision that extends merely to the children of domiciliaries, or people who are domiciled in the U.S. What did you make of his vote in that case, and just how surprised were you that he didn’t side with the Roberts majority?

Matthews: It’s very surprising, then you unpack it and see all of the layers of Gorsuch underneath. It seemed like such a perfect case for him to come in and say, No, no, no, I’m going to go against Trump here, and I’m going to get all the accolades for doing so, and I’m going to get this moment of being the defender of the Constitution, and so on and so forth.

That is what I was counting on. I think we were all surprised at the 5–4 nature of it. To me, what it feels like is that he comes in and he makes this kind of technical legal argument that—looking at it as a person who has not studied these texts, who has studied him but doesn’t have a law degree—it feels so much like a defensive posture: I am the only one who can read the law, and I understand what this means, and let me explain it to you, you poor person who …,blah, blah, blah.

We all grasp what it means to be an American and how that is enshrined in the Constitution. And for him to come in and do this “But, well, actually, here’s my little theory” feels extremely Neil Gorsuchian. I just thought that the desire to be framed as the reasonable one would win out. It’s scary it didn’t and that instead he went in this direction.

Stern: That does seem exactly right, that the correct answer was almost too obvious for Gorsuch to accept. There was real appeal to the sort of revisionist, counterintuitive argument that the administration was making or specifically that Thomas was making.

I think Gorsuch is highly influenced and swayed by Thomas and by Justice Samuel Alito, by his senior conservative colleagues, when they really bear down and make these historical arguments that might sound plausible if you’re reading them with absolutely no background knowledge and don’t do a site check but that absolutely fall apart upon any meaningful scrutiny. This is Gorsuch the bad historian, in part, and I think he really did see a lot to like about the theory that Thomas cooked up.

The 14^th Amendment says that the citizenship clause applies to people who are “subject to the jurisdiction of the United States.” That has long been understood to mean subject to the laws of the United States, which of course the children of temporary visitors and even undocumented immigrants are. From the moment they’re born, they’re subject to U.S. law. Thomas read into that the requirement that their parents be domiciled here.

Basically, what he did was go through the history books—I mean, not really; he went through the amicus briefs and Trump administration briefs that tried to mount this argument—and he plucked out random examples of people misreading the citizenship clause to mean that. Quite often, white supremacists, nativists, people who didn’t want the citizenship clause to mean what it said came up with this conspiracy theory about what it really meant, and Thomas adopted that. And I think Gorsuch liked that and was like, Sure, Clarence. Makes sense to me.

I also think it’s notable that he wrote his own separate opinion saying, Oh, but by the way, I do think that undocumented immigrants can be domiciled here even if they’re living here illegally, and so their children may get the benefit of birthright citizenship, which ends up being maybe the most unpopular position of anyone, right?

Because his argument is that if you come here lawfully on a visa, even a long-term visa, your children don’t get citizenship because you’re not a true domiciliary, because eventually you intend to return to your home country. However, if you come here across the border without authorization but manage to evade the authorities and make a real home for yourself, at some invisible point you cross an invisible line, and your children suddenly get the benefit of birthright citizenship.

It doesn’t make any sense, but it did to him. And the fact that he wrote it out, it felt to me like him saying: Hey, I’m not totally in the tank for Trump, because he hates undocumented immigrants the most, and I think some of their kids can get birthright citizenship. But I still agree with Clarence Thomas that not all of them can, because that’s just the idiot’s reading of the 14^th Amendment, and a really smart guy understands that it means more than you think.

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