Gorsuch Takes a Knee

What U.S. Supreme Court Justice Neil Gorsuch did in his opinion proclaiming that civil rights in employment requires  recognition of gay rights was abominable enough, but what it revealed about his view of his role as a justice is even worse.

Conservative critiques of Gorsuch’s pretentious preening aside—if Justice Antonin Scalia were alive, he’d be turning over in his grave at this supposedly “textualist” opinion his replacement authored—Republican lawmakers may be breathing a sigh of relief. Gorsuch took them off the hook and eliminated the necessity of voting on proposals expanding employment protections to cover discrimination against gays, which House Speaker Nancy Pelosi’s Democratic majority favors. 

Republicans duck so many issues their supine postures must be frozen. 

In fact, Gorsuch’s court action may have improved Republican chances in both the Senate and the House in 2020 (even as it compromises President Trump’s ability to boast about his court picks). 

Gorsuch’s failure to stay in his lane reminds us of the bizarre defense of Obamacare written by Chief Justice John Roberts, who joined Gorsuch in his farcical reasoning in this case. It is rightly said that Roberts tried to remove the Supreme Court from politics but did so at the cost of separating the constitution from our laws. 

With the unconstitutional law in force, Republicans were able to continue to campaign against it and win majorities in both houses of Congress—which they then proceeded to fritter away. I have no idea whether Roberts consciously had such a result in mind, but certainly it would have been predictable, so my conjecture is far from improbable. President Trump’s failure so far to attack this new decision signals that he accepts the political gift, though not necessarily all the consequences, especially those regarding transgender accommodations and bathrooms.

Likewise, it is not impossible that Gorsuch took the heat of his conservative lawyer friends who supported his nomination—when will the Federalist Society come off suicide watch?—so that Republican legislators will be relieved of having to vote on the dishonest but increasingly popular notion of civil rights as requiring gay rights. 

After all, just a day before the court announced this opinion, a Virginia Republican incumbent congressman lost his primary by presiding over the wedding of a same-sex couple. If a purportedly conservative court had ruled correctly on employment rights, might that decision have taken the wind out of his opponents’ sails and dissuaded him from running? I would hope not.

But Gorsuch’s taking a knee to the gay rights movement has a far more disturbing aspect to it. Having known him back in 2006 as a fine colleague at the Justice Department, I believed he might make a good Justice.   When he was nominated, my hesitation was about whether his “new natural law” perspective might encourage him in directions unfavorable to Trump’s policies on, for example, immigration restrictions. 

But his collapse on this issue reveals a kind of hollowness in conservative jurisprudence even worse than the sort I imagined—and Justice Alito’s response, as spot-on as it was concerning legal analysis, also misses the key point. Alito begins his dissent, “There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.” 

As Alito points out, and as I know from having worked almost seven years at the Equal Employment Opportunity Commission as an assistant to its then-chairman, Clarence Thomas, the EEOC never accepted anything like the meaning Gorsuch gave to discrimination based on “sex” to mean sexual orientation. Neither had federal district courts of appeal. 

But Alito’s labors at point-by-point refutation of Gorsuch can’t match his colleague’s will to fit in with the spirit of the times. The court’s opinion affirms Christopher Caldwell’s assessment of the Age of Entitlement, about how the 1964 Civil Rights Act led to “political correctness as the natural outcome of civil rights, which makes fighting bias a condition for the legitimacy of the state.”

Political correctness is the air we breathe. It has overtaken and distorted even our ability to reason on the law.

Note that even dissenting Justice Kavanaugh felt compelled to congratulate the gay rights movement: “Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans . . . .” 

I would reply, without making a legal argument, that I knew the plaintiff in an early gay rights case, a high school civics teacher, James Gaylord (yes, his real name). I thought he was a good teacher—all the students had the impression that he was gay, but he never behaved indecently, so no one ever had a problem with him. He was fired, however, when a supervisor asked him if he was gay and he answered in the affirmative. That was wrong; he should not have been asked, and he should not have answered. Again, such discrete and unjust acts are not the heart of this case.

U.S. Senator Josh Hawley (R-Mo.) thinks the Gorsuch opinion sounds “the end of the conservative legal movement.” He concludes, “if we’ve been fighting for originalism and textualism, and this is the result of that, then I have to say it turns out we haven’t been fighting for very much.” Yes, legal positivism, the idea that laws are mere conventions reflecting nothing more than human will and should be interpreted as such, can get you anything, including many things a people seeking to live under ordered liberty cannot sustain.

But Hawley is mistaken that only religious conservatives can supply the answer. Instead, we should look to those who take the Declaration of Independence seriously, with its reliance on the “laws of nature and of nature’s God.” The God who gave us souls, also gave us nature and reason for the purpose of understanding it. 

As human beings, we should accept these gifts of reason and nature as givens. We all know the differences between boys and girls. So, too, do we know the differences between free men and slaves. When people who believe there are boys and there are girls get treated as slaves, they should not look for judges to help them out, especially when it is the judges who got them into this mess. 

On the U.S. Supreme Court, there remains only Justice Thomas to respect this reasoning. If there are others in government or politics, they are silent. We must do the speaking for ourselves now.

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About Ken Masugi

Ken Masugi, Ph.D., is a distinguished fellow of the Center for American Greatness and a senior fellow of the Claremont Institute. He has been a speechwriter for two cabinet members, and a special assistant for Clarence Thomas when he was chairman of the Equal Employment Opportunity Commission. Masugi is co-author, editor, or co-editor of 10 books on American politics. He has taught at the U.S. Air Force Academy, where he was Olin Distinguished Visiting Professor; James Madison College of Michigan State University; the Ashbrook Center of Ashland University; and Princeton University.

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