Do-Nothing GOP Senate Passes Football to the Court, Fumbles Again

The Supreme Court handed conservatives two gut punches this week, seriously undermining both the rule of law and the foundational American principle of religious liberty. The court also effectively upended the notion that judges, as a political strategy, are the answer to conservative policy concerns.

On Monday, the court handed down a decision in Bostock v. Clayton County, which expanded federal employment discrimination protections to LGBT individuals. The majority opinion was authored by none other than Trump-appointed and GOP Senate-confirmed Justice Neil Gorsuch, who was joined by the court’s liberal members—and also by Chief Justice John Roberts (but I repeat myself). Justice Samuel Alito issued a fiery dissent, joined by Justice Clarence Thomas. Justice Brett Kavanaugh issued his own dissent.

To state that the opinion will change how people of faith—any faith—will live in this country is putting it mildly. The Court acknowledges as much, stating,

Separately, employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions . . . but how these doctrines protecting religious liberty interact with Title VII are questions for future cases, too.

In other words, one of America’s most foundational principles—that of guaranteeing a free people may live and act according to reasonably held beliefs—no longer has a rock-solid guarantee. Rather, it will now be subject to future litigation. Best of luck with that.

In his blistering 107-page dissent, Justice Alito, joined by Justice  Thomas, warned the court’s ruling was “virtually certain to have far-reaching consequences that will “threaten freedom of religion, freedom of speech, and personal privacy and safety.”

Alito called out the court for attempting to impose a failed legislative proposal—the Equality Act—by judicial fiat. “A more brazen abuse of our authority to interpret statutes is hard to recall,” he noted.

The downstream effects of Bostock will ripple into the rights of religious employers, faith-based adoption agencies, the rights of girls and women in competing against biological males in female sports, accommodations in restrooms, locker rooms, and a host of other issues not yet imagined. All of this will now be open to litigation, the outcomes determined by which party has the money to hire the right lawyers, rather than by laws arrived at through reasoned deliberation on the part of elected representatives of the people.

But the court wasn’t done. On Thursday, Chief Justice John Roberts, appointed by former President George W. Bush, released a mess of an opinion opposing President Trump’s effort to end the Deferred Action for Childhood Arrivals (DACA) program, which allows illegal immigrant “Dreamers” to stay in the country and receive federal benefits if they were brought here as children.

DACA was spun out of thin air by President Obama, who, after years of openly acknowledging that he didn’t have the constitutional power to do so, did it anyway. Roberts’ opinion also recognizes what Obama understood—the program is an illegal abuse of executive authority.

But, according to the Roberts Court, one president’s executive action, no matter the brazenness of its illegality, cannot simply be undone by his successor. President Obama may have simply whisked DACA into existence with a “pen and phone,” but the Trump Administration may not appeal to the standard Obama used. By right, Trump should have been able to whisk DACA out of existence the same way it was created.

No, said Roberts. Trump must adhere to the Administrative Procedures Act (APA) to undo DACA—a thicket of rules, regulations, timelines, and comment periods used for creating regulations. But the facially absurd double standard apparently did not bother Roberts, who found the administration violated the APA by acting in an “arbitrary and capricious” manner.

Trump can still end DACA, but he’ll have to try again—and, thanks to the court’s precedent that such an action must adhere strictly to the APA, he won’t have time to do it before November’s election. For the notoriously politically minded Roberts, this may have been the entire point.

Justice Thomas made this plain in his dissent:

Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision . . .The Court could have made clear that the solution respondents seek must come from the Legislative Branch. Instead, the majority has decided to prolong DHS’ initial overreach by providing a stopgap measure of its own. In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong—the political branches. Such timidity forsakes the Court’s duty to apply the law according to neutral principles, and the ripple effects of the majority’s error will be felt throughout our system of self-government.

“But Judges!” Is Not a Legislative Strategy

The Supreme Court’s failures stand on their own, but they also bring into sharp relief the utter failure of the Congress—which, for the first two years of President Trump’s term, was entirely controlled by Republicans.

That the court is dealing with these divisive cultural questions, instead of the people we elect to represent our interests in precisely these moments, is entirely the fault of Congress—in particular, the Senate, which for the past four years has made an intentional strategic decision to outsource these questions to the courts.

The Senate’s insistence on confirming judges, rather than legislating, was an overt acknowledgment of the fact that they’d rather have the appointed judiciary take on these fundamental societal questions than bother to take them on themselves. In other words, they are passing the buck.

For years, they sold conservatives on this strategy. It was a necessary one, they assured us. “But Gorsuch!” became the rallying cry of their reelection campaigns. Voters were told the only way to get the policies they wanted was to vote for a Republican Senate so it could confirm more Republican-selected judges to uphold and enact Republican priorities.

The Senate, meanwhile, continued furiously to avoid acting on anything related to abortion, immigration, religious liberty, or any other divisive policy, preferring instead for the courts to act on the major cultural questions of our time.

But as we learned this week, “But Gorsuch!” and the “but judges!” movement, more broadly, is not a viable political strategy.

Judges are important, but they cannot take the place of an elected legislature willing to do the work they were elected to do; to stand up in defense of the foundational questions of how our society will be ordered and of how we will live in relation to one another. These questions cannot be solved by our black-robed masters. It is essential to the preservation of self-government that they be given the full airing and debate for which our legislature was designed.

Better Vetting Is Needed

But the conservative legal machine should also come under scrutiny. For years, the D.C. conservative legal establishment has selected its preferred candidates, for its own reasons, and treated dissent as sacrilege.

When Senator Josh Hawley (R-Mo.) attempted to vet the pro-life background of Naomi Rao in 2019, he was effectively told he was a snotty little upstart. When he questioned the wisdom of confirming Michael Bogren, who in a legal brief compared practicing Catholics to the Ku Klux Klan, the Wall Street Journal wasted an entire editorial sneering at him.

Yet such vetting—from outside the established circles—seems long overdue.

A more thorough vetting that included wider input might have been helpful in examining then-nominee Neil Gorsuch’s full record on religious liberty. One could also reasonably argue that John Roberts did not receive nearly the scrutiny that he should have, given that he was a largely untested rookie, up for chief justice.

Instead, we got D.C. legal scholar Ed Whelan insisting Roberts’ record as a lawyer for President Ronald Reagan put him above reproach. “Those who try to paint Judge Roberts as a squishy moderate will not find any supporting evidence in these documents,” he said, referring to the release of Roberts’ White House files.

Well, Justice Roberts has been nothing but a squishy moderate, so perhaps what we needed was not the assurance of “trust me,” but a more transparent, thorough, and open-minded process.

The rug was pulled out from under conservatives this week by the very court we were assured would protect us—if only we voted for enough Republicans. Those same Republicans do not seem very perturbed about any of these very real threats to many religious and traditional conservatives’ way of life, or by the fact that the court has effectively undermined the rule of law in the DACA case. Instead, they seem relieved to throw up their hands, point to the court’s ruling, and shrug. These are all problems our elected representatives could have solved if they had chosen to do so. They still could. But don’t hold your breath. 

This week, more than most, should be a wake-up call to Americans about what Republicans and the conservative movement deserve and about what we should expect from the people who claim its leadership.

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About Rachel Bovard

Rachel Bovard is senior director of policy at the Conservative Partnership Institute and Senior Advisor to the Internet Accountability Project. Beginning in 2006, she served in both the House and Senate in various roles including as legislative director for Senator Rand Paul (R-Ky.) and policy director for the Senate Steering Committee under the successive chairmanships of Senator Pat Toomey (R-Penn.) and Senator Mike Lee (R-Utah), where she advised Committee members on strategy related to floor procedure and policy matters. In the House, she worked as senior legislative assistant to Congressman Donald Manzullo (R-Il.), and Congressman Ted Poe (R-Texas). She is the former director of policy services for the Heritage Foundation. Follow her on Twitter at @RachelBovard.

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