What's Up With the Supreme Court?
I am no longer a practicing attorney. Frankly, I hated being a lawyer. There were these things called clients and inevitably they were annoying people with easy to solve problems who hated other people so much they refused to do the practical and right thing in favor of being a pain in the butt.
Nonetheless, I practiced law for over five years and have generally been a part of the conservative movement for some time. I do try to keep up. I see a lot of friends in complete meltdown this week over the Supreme Court. I won’t try to dissuade you that John Roberts doesn’t suck. I am not a fan.
But I also don’t think the conservative revolution is upended or ended so much as I think conservatives managed to put a bunch of politicians on the Supreme Court and those politicians are playing politics that, right now, does not give conservatives what they want. Here’s what I think happened and I admit I’m in the minority. This is not an endorsement of what happened, just an explanation.
On the gay rights case, I am fully committed to the idea that Roberts and Gorsuch attempted to launch a pre-emptive attack on the leftward drift on this issue. They’re looking at the lay of the land. Trump may very well lose in November. Biden will get Ginsberg and Breyer replacements. There could be another Scalia surprise. Better lockdown some jurisprudence. And, oh, by the way, we can see where this is headed.
Gorsuch tried to cleverly thread a needle. If you have not read the case, Gorsuch embraces “transgender status” instead of gender identity and makes transgender status about behavior, not biology. As a result, he can absolutely later make the case that boys cannot compete in girls’ sports because sports are not about status, but biology.
Gorsuch also gets to expand sexual orientation and transgender status in employment, while propping up ministerial protection for faith based groups that Ruth Bader Ginsburg would never have given. I suspect Gorsuch going down this road will allow him, and Roberts, to later lay out protections for faith-based groups that are not directly affiliated with churches. The left has already hinted at its overal sexual revolution strategy being to go after Christian private schools and enterprises not directly tied to specific churches. Gorsuch just threw up a road block.
I think Gorsuch got it wrong, but he is a politician who wants to move chess pieces on the board of a long game and that is what he did.
Then you have the DACA case. Like the census case before it, John Roberts essentially said what Trump wanted to do was fine, but Trump sucks. In both cases, Roberts is announcing his contempt for Donald Trump and depriving Trump of wins not because Roberts thinks the policy positions are wrong, but because he thinks Trump’s team lied and half-assed their way to the decisions. If, for example, Roberts had been dealing with President Ted Cruz or President Mike Pence, he’d have been on the other side.
Roberts is in the wrong. As Clarence Thomas noted in his dissent, the underlying policy was illegal so removing it should not be unconstitutional. But Roberts is a politician and he’s being political about this whole thing and, frankly, the Trump team did rush both cases and provided conflicting excuses for their policy changes.
Again, I’m not endorsing what happened, I’m just trying to explain what I think happened. Say John Roberts sucks all you want and be disappointed in Neil Gorsuch. But I think their opinions are all about them thinking Trump sucks and Gorsuch also trying to maneuver long term with secular, progressive winds building that he knows will be hard to stop, but might possibly be redirected away from faith-based groups.
The problem with the conservative legal movement is not that they picked bad jurists. It’s that they picked politicians who are playing long term political strategies without the need to ever be held accountably by voters.
To be clear, I am a Bible-believing Christian who believes that both homosexual and transgender behavior are detestable to God. But the recent Title VII court decision was not about that issue, and it does nothing to change that fundamental reality.
I took the time to read Gorsuch's opinion ( https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf ) to see what he actually wrote. I believe Gorsuch's opinion is consistent with his judicial view that "This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment." Gorsuch's opinion (starting on PDF page 6) isn't based on contorting the meaning of any words or rewriting any law. It is based on the simple premise that the clear language of Title VII prohibits discrimination based on sex, and one cannot determine homosexuality or transsexuality without referring to the sex of the individual.
Gorsuch pointed out that Title VII clearly indicates that it is illegal to discriminate against any individual "because of" sex. He further explained that the "because of" clause has a history of being interpreted as "but for", which in this case means that an individual would not have discriminated against "but for" his/her sex, given the original meaning of male/female. In addition, Gorsuch made clear that the "but for" reason does not have to be the "only reason" or the "primary reason" for the discrimination citing previously decided cases. Because the employers admitted they were discriminating against employees based on either homosexuality or transgenderism, and because one cannot determine that without referring to sex, he wrote that this is a clear violation of Title VII. Consequently, Gorsuch opinion was based on what the Title VII law actually said, and if that violates Biblical morality, the problem is the original wording of the law used very broad language forbidding discrimination, and not Gorsuch's interpretation of the law.
Title VII provides an exception for religious organizations as the freedom of religion enshrined in the first amendment cannot be violated by Congressional law: "This subchapter shall not apply to ... a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities." So while the progressive left is always trying to get court rulings that ignore the first amendment, the legal issue for Christians regarding political appointments is what candidate will appoint judges that will honor the clear meaning of the protections for religious views in the first amendment.
I would also argue that except for religious organizations where doctrinal purity is essential to their function, it is arguably wrong to discriminate against homosexual or transgender employees, regardless of the strict meaning of the law. I think it is hard to justify doing that in line with Jesus parable about the Good Samaritan (Luke 10:25-37) which emphasized "Love your neighbor as yourself" as the second most important commandment. The primary function of an employee is to perform duties assigned to him/her by an employer. If a homosexual and/or transgender employee does that, it is really consistent with Biblical morality to discriminate against them? Take for example Richard Grenell, who despite being openly homosexual, clearly represented the policy views of many Trump supporters as Ambassador to Germany and Acting DNI. Is Christian morality really about preventing a homosexual like Grenell from serving in these positions?
The fact is that everything related to power in America is political, and the judiciary is no exception. It is a fallacy that religion and politics are mutually independent, as the people who were forbidden to attend church in their cars because of Corona found out. The Dred Scott decision is pretty solid evidence that until Lincoln, America's Supreme Court was certainly not color-blind, even thought it had some very positive changes in the mid 1900's. Starting with the FDR-era and going into hyper-drive in the Johnson-era, Supreme Court rulings ceased to be blind to political policy views, if ever it were, by effectively writing legislation versus ruling on its constitutional status.
In my opinion. Roberts is not a Constitutional-centric justice with his votes on Obamacare and DACA being prime examples of the various decisions where he has voted with the Democratic block to give them a 5-4 ruling. In contrast, Gorsuch and Kavanaugh have both been swing votes on certain issues, but their logic is always based on constitutional grounds that are important to them, even if one disagrees with their view. I believe there has never been a 5-4 decision where one of the Democratic block of justices split off and sided with the Republican majority who lost one of its members. This is pretty solid proof that swing votes are like bipartisanship, in that they only swing to the Democratic side.