A SUPREME CHANCE

Conservatives are one seat away from seeing what they really want on the Court

President Trump has thus far had two successfully appointed Supreme Court nominees. Trump’s first nominee, Neil Gorsuch, had a solid record on the US Court of Appeals for the Tenth Circuit — including multiple robust opinions in defense of religious liberty — although it was a record not nearly as lengthy, distinguished, and conservative as those of Justices William Rehnquist, Antonin Scalia or Samuel Alito.

Justice Gorsuch’s first two terms on the Court were mostly good, but only time will tell what kind of justice Neil Gorsuch will ultimately become. History, alas, has shown that these questions are measured in decades, and not merely in a few years.

Sadly, this past June — in the most notable decision of his short tenure — we’ve already seen Justice Gorsuch joining Chief Justice John Roberts and voting with the four liberals in a landmark decision, where the Court concluded that the Civil Rights Act of 1964, which prohibits discrimination “because of . . . sex,” also covers sexual orientation and gender identity. As a policy matter, you might believe Gorsuch’s position isn’t unreasonable.

Indeed, legislation to protect sexual orientation and gender identity has repeatedly been introduced in Congress, and at different times it has passed both the House and the Senate. But rather than allow elected legislators to make the policy decisions — and to address whatever compromises might be needed to protect free speech, religious liberty and other fundamental rights — the Court just decreed the law was changed. Justices Alito, Clarence Thomas and Brett Kavanaugh dissented. Justice Alito put his disapproval in no uncertain terms, writing that “the Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated — the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”

President Trump’s second nominee, to replace Justice Anthony Kennedy, was Brett Kavanaugh. Judge Kavanaugh had a record much like that of Roberts. Indeed, when then-presidential candidate Trump put out his initial list of 11 judges, and subsequently his expanded list of 21 judges, Kavanaugh’s name was deliberately omitted. The reason for this was simple: Kavanaugh, on the DC Circuit, had written an opinion in a case called Seven-Sky v. Holder arguing that the ObamaCare individual mandate was a tax; it was an opinion that many saw as a roadmap for Roberts’ subsequent decision upholding ObamaCare in NFIB v. Sebelius.

Kavanaugh had been a law clerk to Justice Kennedy, and the Washington rumor mill churned with the belief that Kennedy wanted Kavanaugh to replace him and that Kennedy agreed to retire only after the Trump White House made that promise. I don’t know for certain if those rumors are true, but they are certainly plausible.

Kavanaugh, like Roberts, has often sought to avoid controversy. It is no