Et Tu, Gorsuch?

No matter what goes wrong during President Donald Trump’s time in office, his die-hard supporters will tell you that it’s all worth it for the judges he appoints. He put conservative originalists Neil Gorsuch and Brett Kavanaugh on the Supreme Court, and that alone is enough to satisfy the fans.
The Supreme Court’s recent ruling on the case of Bostock v. Clayton County, however, has soured some of the faithful on Gorsuch. After hearing the case the Supreme Court concluded that the Civil Rights Act of 1964 says lesbians, homosexual men and transgendered people cannot be fired because of their sexual activities or what sex they consider themselves to be, which is making many religious right types unhappy, and Gorsuch not only joined the court’s four liberal justices in the majority but also wrote the opinion.
Some of the religious conservatives who support the conspicuously irreligious president will admit they oppose the decision because they want to be able to fire any sexual deviants they might have inadvertently hired, and needlessly worry that churches won’t have the exceptions they’ve always enjoyed, but others couch their complaints in terms of judicial overreach. We don’t see any reason for anybody to fire anyone for their private sexual conduct or their opinions about their sex, but there is some merit to the argument about the court amending laws by judicial fiat.
The Civil Rights Act of 1964 makes no mention whatsoever about homosexuality or transgenderism, which is not surprising given the time when it was passed. Back in ’64 gay rights weren’t a big issue, and nobody had even heard of transgenderism, and if the bill did include such language it would have been so controversial the bill wouldn’t have passed. A more up-to-date Congress could have added those protections to the law, but has declined to do so, so our strictly constitutionalist sensibilities are also offended by any court usurping the legislature.
In his writings and speeches and past rulings Gorsuch has long claimed to be a “textualist,” meaning that the believes courts should interpret a statute by it’s plain and not infer any intentions the lawmakers might have had, and certainly not assume what they might have thought after 56 years of social evolution, so his siding with the majority in this case is surprising. Our reading of the lengthy opinion doesn’t provide us with a convincing explanation for his change of mind.
Conservatives have long been disappointed with Republican-appointed Supreme Court justices, going all the way back to President Dwight Eisenhower’s choice of Chief Justice Earl Warren, who presided over a court that expanded civil rights and limited police powers, and continued with President George W. Bush’s choice of Chief Justice John Roberts, who infuriated conservatives by declining to find “Obamacare” unconstitutional. Gorsuch is just the latest in a long line of Republican appointees who have disappointed Republicans.
Should Gorsuch get back to his textualist roots, though, he might wind up disappointing Republicans even further. Trump has a number of legal cases involving everything from his immigration policies to his tax returns and alleged cases of sexual misbehavior winding their way through the court system, and a strict textualist might rule against him in several of those cases. There’s a nearly 100-year-old and long upheld law that lets Congress look at any American’s tax return, for instance, and the text does not include any exception for presidents, so it will be interesting to see how the Trump appointees rule in that case.
There are countless federal statutes that are very liberal, and the Constitution also has some very liberal language, and a sincerely originalist and textualist jurist would leave it to the legislative and executive branches to rectify that, even if the Trump era sort of conservatives would prefer that the courts bang a gavel and return America to 1964, or better yet 1954, before all that civil rights legislation and litigation. Most people don’t care so much about constitutional arguments and just want the courts to deliver their preferred policy, so our guess is that Republicans will once again be disappointed in their party’s Supreme Court picks, and Trump supporters will be disheartened.

— Bud Norman

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