Jurisprudence

Conservative Activists and Pundits Are Melting Down Over Gorsuch’s Embrace of LGBTQ Rights

After spending millions to get him on the court, judicial activists are feeling betrayed.

Elena Kagan speaks with Neil Gorsuch at the U.S. Capitol on Feb. 4
Sharing words with “the enemy.” Brendan Smialowski/Getty Images

On Monday, Supreme Court Justice Neil Gorsuch betrayed the Constitution and the great cause of equality for which so many civil rights leaders fought, according to a number of really distraught conservative judicial activists.

Joined by fellow conservative Chief Justice John Roberts and the court’s progressive wing, Gorsuch issued a landmark 6–3 ruling that Title VII of the 1964 Civil Rights Act prevents employers from discriminating against workers because they are gay or transgender, paving the way for breakthrough employment protections for LGBTQ people around the country.

As Mark Joseph Stern explained, the justices followed a straightforward legal theory that the portion of the Civil Rights Act that prohibits discrimination “because of sex” encompassed discrimination on the basis of sexual orientation and gender identity. It’s impossible for an employer to discriminate against a gay or transgender person without taking into account the person’s sex, which would mean discriminating on that basis, Gorsuch reasoned.

This did not sit well with the conservative legal activists who put time, energy, and vast amounts of money into securing Gorsuch’s confirmation to replace Justice Antonin Scalia at the start of President Donald Trump’s term.

Gorsuch’s Monday opinion apparently enraged Carrie Severino, the president of the Judicial Crisis Network, an organization that reportedly spent $10 million to secure Gorsuch’s confirmation in 2017 and promised another $10 million to secure Justice Brett Kavanaugh’s in 2018. Severino accused Gorsuch of ruling “for the sake of appealing to college campuses and editorial boards” in “a brute force attack on our constitutional system.”

Perhaps most offensive of all to Severino was that Gorsuch, in issuing his opinion, cited Scalia’s “textualist” judicial philosophy of seeking to interpret the plain meaning of the words of a statute at the time it was written. As she dramatically put it: “This is an ominous sign for anyone concerned about the future of representative democracy.”

And it wasn’t just Severino who was worried about what would become of democracy now.

New York Post op-ed editor Sohrab Ahmari—most famous for his position that liberal democracy is beginning to get in the way of conservatives’ ability to go about “defeating the enemy and enjoying the spoils in the form of a public square re-ordered to the common good”—was frustrated as well.

The joint frustrations of the conservative institutionalists vs. the anti-institutionalists resulted in a bit of maudlin backbiting over what exactly went wrong today.

Ahmari’s arguments for the reactionary and anti-majoritarian politics of Trumpism seem to be gaining the upper hand after Monday. Daily Caller columnist Saurabh Sharma was calling for open defiance of Monday’s ruling in Bostock v. Clayton County and other legal opinions adverse to the conservative cause of preventing equal rights for gay and transgender people.

Historically, nullification has offered a mixed bag in terms of success, failing at the practical level of the ability to outright defy laws while occasionally pushing the courts toward judicial accommodations for those doing the defying that have long-lasting impacts.

Still, the concept was all the rage on Twitter on Monday. As the opinion editor of Newsweek, Josh Hammer, put it:

Hammer was similarly grave about the consequences of the decision for the legitimacy of particular justices who were recently put forward by the conservative movement:

Indeed, he thought the whole thing was a joke:

Meanwhile, senior editor at the Conservative Review Daniel Horowitz endorsed Hammer’s notion that the Republican Party writ large—as embodied by its choices of Supreme Court justices—had failed the conservative movement.

Hammer, for his part, was so angry about the news that he even attacked one of the dissenting justices, Brett Kavanaugh. Despite saying he would rule against the rights of LGBTQ people in this case, Kavanaugh apparently committed the sin in Hammer’s eyes of not being mean enough to them in doing it.

Kavanaugh wrote that “notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. … [They] can take pride in today’s result.”

As Hammer responded to these empty words in a since-deleted tweet:

So even one of the three dissenters feels compelled to flaunt his virtue for the mob. There are literally two good justices on the Court: Thomas and Alito. The “conservative legal movement” is a failure.

Ultimately, though, the frustration of these conservatives seems very likely to be short-lived. The Supreme Court and its conservative majority are set this term to decide a raft of major cases, including one that could overturn a landmark abortion decision upholding and bolstering Planned Parenthood v. Casey and Roe v. Wade that was decided just four years ago. There is more than enough time in the remainder of this term for Gorsuch to vindicate himself in the eyes of his—for today—very distraught benefactors.

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