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Why banking on judges is a poor strategy

16 June 2020

9:18 AM

16 June 2020

9:18 AM

Monday’s Supreme Court decision in Bostock v. Clayton County was massively significant for two reasons.

As a legal matter, the ruling determined that the prohibition on ‘sex discrimination’ in the Civil Rights Act of 1964 makes it illegal to fire an employee on the basis of sexual orientation or gender identity.

As a political matter, the ruling flipped the entire legislative strategy of the GOP political class — which relied exclusively on judges to enact and protect all of their priorities — on its head.

The majority opinion was authored by none other than Justice Neil Gorsuch, nominated by President Trump and confirmed by the Republican Senate in 2017. He was joined by Chief Justice John Roberts, and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Justice Samuel Alito filed a sharp dissent that was joined by Justice Clarence Thomas. Justice Brett Kavanaugh filed his own dissent.

The consequences of this decision on religious liberty in America are unknown, but suffice to say, they will be significant. The opinion acknowledges the burdens the ruling may place on religious employers, but notes that those are ‘questions for future cases’. The rights of religious employers in America, apparently, will only be granted clarity through future lawsuits

That Congress could and should act on this question is paramount, and acknowledged by Justice Alito in his dissent. Alito wrote that there ‘is only one word for what the Court has done today: legislation’. He went on, ‘a more brazen abuse of our authority is hard to recall’. The real question before the court, says Alito, is ‘not whether discrimination because of sexual orientation or gender should be outlawed. The question is whether Congress did that in 1964. It indisputably did not.’


Justice Kavanaugh, in his own dissent, noted that ‘under the Constitution’s separation of powers…I believe that it was Congress’s role, not this Court’s to amend Title VII.’

The role of Justice Gorsuch in authoring an opinion that betrays traditional and religious conservatives casts a pall over the GOP’s legislative strategy, which has largely been focused on outsourcing decision-making to Republican judges.

The Republican Senate has achieved little else over the past few years besides a slow churn of judicial confirmations: an overt acknowledgment of the fact that the Congress, as the country’s elected legislative body, has intentionally removed itself from any meaningful role in deciding central societal questions.

Those questions are now outsourced to the judiciary, under the theory that judges, as long as they are appointed and confirmed by Republicans, will save our republic.

Monday’s ruling is yet another example that disproves that thesis. The GOP political class may want to rethink their strategy. We elect legislators to do the hard work of debating, writing, changing and passing the laws through which our society is ordered. More and more, that role is being outsourced to the courts — with the approval and complicity of the Congress.

Policies regarding immigration, abortion, LGBT, race and healthcare are no longer determined by the country’s elected representatives, but by our black-robed masters in the judiciary. Rather than grappling with the culturally-defining issues of the day in the way the Congress was designed to do, senators can now simply vote yes or no on a judge to do it for them. It leaves more time for the Republican Senate to focus on things they actually care about, like the next big corporate tax break or starting another war in the Middle East.

As Gorsuch’s role in the Bostock case proves, ‘But Gorsuch!’ was not and has not ever been a viable or particularly creative strategy to save the country.

There is no silver bullet that gets around the tough work of legislating. It should take presidential leadership, which Republicans have, and congressional leadership, which they do not. The best thing congressional Republicans can do now is to find their intestinal fortitude and raise themselves to the demands of the current moment with a legislative process that outlines their vision for what the country should be.

Success is never guaranteed. But neither is a given result in the courts. By peddling the out-and-out lie that the courts can be depended on for the last four years, the GOP has succeeded in only one thing: giving their base yet another reason to distrust them.

Rachel Bovard is the senior director of policy at the Conservative Partnership Institute.


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