Gorsuch opinion for LGBTQ rights rattles conservatives
WASHINGTON — Justice Neil M. Gorsuch was President Donald Trump’s first choice for the Supreme Court and a conservative’s dream — until he wrote this week’s landmark opinion extending civil rights protections to LGBTQ employees nationwide.
The ruling sent a shudder through the ranks of conservative activists and columnists, some of whom saw signs of another betrayal by a Republican-appointed justice who ended up siding at times with liberals on key issues.
“This was not judging. This was legislating — a brute force attack on our constitutional system,” said Carrie Severino, president of the Judicial Crisis Network, which funded ads supporting Gorsuch’s confirmation in 2017.
Gorsuch spoke for a 6-3 majority in declaring that the 1964 Civil Rights Act’s ban on employment discrimination based on “sex” also covers lesbian, gay, bisexual, transgender and queer workers. “An employer who fires an individual merely for being gay or transgender defies the law,” he wrote in Bostock v. Clayton County. Previously, Title VII of the act was seen as protecting women from gender discrimination.
Tom Fitton, president of Judicial Watch, called it a “radical Supreme Court decision (which) shows that the threat to the rule of law doesn’t only come from leftist rioters in the streets.”
The Wall Street Journal’s editorial page called it “Another Win for the Kagan Court,” theorizing that Justice Elena Kagan, an Obama appointee and former Harvard Law School dean, had found a formula to win over Gorsuch and Chief Justice John G. Roberts Jr. “to rewrite the Civil Rights Act.” Monday’s decision “is merely the latest evidence that the Roberts Court, even buttressed by two Trump nominees, is in no consistent way ‘conservative,’ ” the editorial concluded.
One of the nation’s most outspoken conservatives was uncharacteristically restrained. “Some people were surprised,” Trump said in response. “But they’ve ruled, and we live with their decision.” It was a “very powerful decision, actually,” he added.
Notably Trump did not mention Gorsuch, even though in the past Trump hasn’t hesitated to deride other justices by name or criticize rulings that haven’t gone his way.
Gorsuch’s opinion is likely to spur legal challenges to some of Trump’s policies. Last week, the Trump administration repealed a health regulation that would have protected transgender people from discrimination. Last year, the Defense Department revoked regulations that protected transgender people serving in the military. Both now could come under attack.
The ruling could have been interpreted by the right as a great triumph for judicial restraint — long a conservative value. But in an increasingly partisan and ideological nation, it was greeted as a betrayal of the conservative cause. Despite a steady record of conservative votes over 15 years, Roberts - who has since sided with liberals on other matters, including the recent gay rights decision — is still seen as a turncoat by many on the right.
During the 2016 campaign, Trump slammed the chief justice as a “disaster” and a “nightmare for conservatives.” He promised his court appointees would be rock solid conservatives.
But the confidence of some conservatives was shaken this week. Quin Hillyer, a columnist for the conservative Washington Examiner, called Gorsuch’s opinion in the gay rights case “one of the worst pieces of robed sophistry since Chief Justice John Roberts invented a new meaning of the word ‘tax’ to save Obamacare. As legal reasoning goes, it is garbage.”
But despite the handwringing over this week’s ruling, there is little evidence that Gorsuch will become a moderate or a swing vote like Kennedy. He is a skeptic of abortion rights and voted last year to allow a strict Louisiana abortion law to take effect, even though it may have shut down all but one of the state’s providers of abortion. That case is now awaiting a final decision from the high court. Roberts voted with the liberals to put the law on hold while the justices reviewed its constitutionality.
Gorsuch also voted to uphold Trump’s travel ban in 2018, and he appears likely to cast a vote to uphold Trump’s plan to rescind the Deferred Action for Childhood Arrivals program, or DACA, which shields from deportation about 700,000 so-called Dreamers who came to this country illegally as children.
Gorsuch often says judges should decide cases based on the words of the law — and not on the merits of a particular policy. And if so, it is relatively easy for the court’s conservatives to conclude the immigration laws allow a current president to repeal a guidance policy set by the previous president.