Conservatives are bitterly disappointed by the Supreme Court’s latest high-profile decisions. Thursday’s decision to require President Barack Obama’s policy of forbearance toward illegal immigrants who came to the U.S. as minors may have the biggest short-term political impact.
But it is moral and religious issues that have most deeply shaped the politics of judicial confirmation over the last generation, and so the court’s decision Monday of last week about the rights of gay and transgender employees could cause the most lasting repercussions.
The court ruled that discrimination based on sexual orientation or transgender status is illegal discrimination based on sex. It has split conservatives into three camps.
One group agrees with the court’s decision, saying it was a straightforward application of traditional conservative legal philosophy. A second says it was a misunderstanding or even a twisting of that philosophy. And a third says the decision reflected conservative legal philosophy but shows why that philosophy is in error.
Sen. Josh Hawley, R-Mo., gave a floor speech that artfully straddled the second and third camps. "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," he said.
The decision is regrettable, and the critics are right to worry that it will have negative consequences including reductions in religious liberty. But they are overlooking the deepest cause of their frustration, which is their political failure rather than the flaws of any legal philosophy.
On Monday, the justices ruled that way back in 1964, Congress and President Lyndon B. Johnson accidentally outlawed discrimination against gay and transgender people.
The Civil Rights Act of 1964 explicitly outlawed discrimination on the basis of sex.
Six justices reasoned that discrimination that takes any account of sex fits into the ban.
If an employer wouldn’t fire Bob for dating Alice but would fire Susan for dating her, then Susan is being treated worse because of her sex.
It’s irrelevant that Congress didn’t intend the law to cover this situation. What matters is that it’s covered by the text of the law Congress passed. That’s what "textualism" means for Justice Neil Gorsuch, the Trump appointee who wrote the decision.
Gorsuch is right that text has to come before purpose: Congress enacted words into law, not an intention. But his reading of the text is strained. At the time the act was enacted and for long afterward, discrimination on the basis of sex was generally understood to mean treating one sex worse than another.
No less a liberal luminary than Justice Ruth Bader Ginsburg wrote as much 22 years ago. An employer who fired gay men and lesbians would be acting unjustly.
But that employer wouldn’t be discriminating on the basis of sex in the sense Congress actually did outlaw. That’s why so many people have urged Congress for years to change the law to accord with our society’s new attitudes toward sex and identity.
The third group of conservatives, the ones who think this case should prompt profound shifts in conservative legal philosophy, are implicitly saying that the conservative dissenters were wrong.
Rather than consider themselves bound by the text or original public understanding of a legal provision, judges, in their view, should decide at least some important cases by appealing to moral truths.
From their perspective, the fundamental error of Gorsuch’s opinion was using feminine pronouns for people with Y chromosomes.
Instead of trying to put textualist judges on the bench, then, conservative presidents and senators should be looking for judges who have the right views on substantive questions — for instance, should unborn children be protected? — and are willing to make rulings based on those views.
The pitfalls of this approach, vaguely sketched out as it usually is, should be obvious.
If Congress had ever actually passed a law outlawing discrimination based on sexual orientation, a judge would be bound to give that law effect whether or not he agreed with it. Americans never agreed to be ruled by judges, even wise ones, and shouldn’t.
If, on the other hand, more judges believed they were authorized to go beyond the text of laws to pursue justice and the common good, the courts would have outlawed discrimination based on sexual orientation much sooner than they did.
Some such thought process may well have lurked in the backs of the minds of some of the liberal justices in the majority.
And if you’re looking for a method of judicial selection that would have guaranteed against this result, screening for moral conservatism isn’t it: It is perfectly possible to hold traditional moral views about sex while also thinking that it is almost always unjust to treat employees and prospective employees differently on the basis of their sexual orientation or identity and that government should prohibit that injustice for the sake of the common good.
Replacing originalism and textualism with conservative moralism makes no strategic sense, either.
The fact that zero of nine justices followed this approach suggests some of the practical challenges it would face.
If social conservatives had the level of political support needed to put five justices on the Supreme Court who would rule as explicit conservative activists, they wouldn’t have to fret about decisions about the Civil Rights Act in the first place.
They would be able to respond to Gorsuch’s ruling by having Congress enact a new statute that undid its effects in whole or in part.
They are not in that position because the public isn’t with them on the issue of discrimination based on sexual orientation and transgender status, which offends most people’s sense of fairness.
That sentiment was bound to be embodied in law eventually — even if, as Hawley says, the Supreme Court should have left the legislature to decide the question.
Abraham Lincoln, who knew well the harm that errant judges can do, might have overstated matters when he said, "Public sentiment is everything. With public sentiment, nothing can fail. Without it, nothing can succeed."
What’s ailing social conservatism isn’t that it is backing textualism inside the Supreme Court. It’s that it’s losing the higher court outside it.
Ramesh Ponnuru is a Bloomberg View columnist. He is a senior editor of National Review and the author of "The Party of Death: The Democrats, the Media, the Courts, and the Disregard for Human Life." Read Ramesh Ponnuru's Reports — More Here
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