In the run-up to the midterms, Congress remains in recess, its members afraid to take any votes that might hurt their reelection prospects. The federal judiciary does not have this problem: Its members are insulated for life from the consequences of their actions. No one understands this fact better than Republican-appointed judges, who have spent the last two weeks flexing their muscles as if to remind the country who really rules it. A series of decisions from the lowest to highest courts reinforced these judges’ steely grip on power in the United States. Several of these rulings imposed extreme policies that are far more sweeping than any actual elected lawmakers could ever hope to enact. This October, the courts have been out of control.
Start—where else?—in Texas, home of Donald Trump’s most radical appointees. Even among this crew of bomb-throwers, U.S. District Court Judge Matthew J. Kacsmaryk stands out. In 2021, Kacsmaryk seized control of American border policy, forcing migrants back into Mexican territory by judicial decree for nearly a year. The Supreme Court eventually shot down this power grab, returning authority over foreign affairs to the president. But Kacsmaryk evidently did not learn any lessons: The judge is now defying the Supreme Court’s decision in Bostock v. Clayton County protecting LGBTQ people from discrimination.
The logic of Bostock is straightforward. Title VII of the Civil Rights Act bars employment discrimination “because of sex.” It is impossible to discriminate against a gay or transgender employee without taking their sex into account. Thus, anti-LGBTQ discrimination is a form of sex discrimination. There is no reason why this analysis should not apply to more than 100 other federal laws that outlaw sex discrimination. So the Biden administration has issued regulations and guidance explaining that these laws also forbid anti-LGBTQ discrimination, including the Affordable Care Act, which bars sex discrimination in health care.
One by one, Kacsmaryk has run these regulations through the shredder. The judge has carved a nonsensical distinction between “status” and “conduct,” declaring that Bostock prohibits discrimination only on the basis of status. So, according to the judge, if an employer discriminates against a gay worker for getting married—or a trans worker for transitioning, or a bisexual worker for going on a same-sex date—that’s legal. What’s left after that? Nothing, and that’s the point: Every act of anti-LGBTQ bias can be reframed as discrimination based on action rather than identity.
The Supreme Court has expressly rejected any distinction between status and conduct in this context, explaining that restrictions on “homosexual conduct” are just discrimination against “homosexual persons.” But Kacsmaryk simply decided SCOTUS was wrong and he was right. On that basis, the judge struck down the government’s efforts to enforce Bostock against employers on Oct. 1, essentially halting the Biden administration’s efforts to enforce the Supreme Court’s own mandate.
That wasn’t all: On Oct. 14, Kacsmaryk certified a class of every health care provider in the United States in a lawsuit against government regulations that bar health care providers from discriminating against LGBTQ patients. Most medical professionals don’t actually want to discriminate, but Kacsmaryk just lumped them in with the handful of anti-LGBTQ doctors who brought the lawsuit. He has already declared that the Affordable Care Act doesn’t outlaw discrimination. Any day now, he will issue an order freeing every health care provider to engage in the kind of bias that Bostock forbade.
Kacsmaryk feels free to issue these outrageous rulings because all of his cases are appealed to the 5th U.S. Circuit Court of Appeals, the Trumpiest appeals court in the country. He knows the Trump-stacked court will greenlight his precedent-busting crusade against the Biden administration. And, true to form, the 5th Circuit also recently took its own cleaver to the federal government. On Oct. 19, a three-judge panel found the Consumer Financial Protection Bureau to be unconstitutionally funded, nullifying its enforcement authority. In short, the court nuked an entire federal agency. It announced a new rule—totally foreign to Supreme Court precedent and the Constitution—that Congress cannot permanently fund federal agencies. Instead, Congress has to reappropriate money over and over again, through a bill stamped “APPROPRIATIONS.”
If that’s true, it’s not just the CFPB that’s unconstitutional, but also the Federal Reserve and most major social programs, including Social Security and Medicare. Huge chunks of the federal government get permanent funding through formulas set by Congress; the 5th Circuit has now put these trillions of dollars in jeopardy. The court apparently wants to impose Rick Scott’s vision of ever-shrinking government through judicial fiat.
This sort of radicalism is nothing new from this court. In May, the 5th Circuit effectively declared the Securities and Exchange Commission unconstitutional. The three-judge panel’s ruling suggested that countless other federal agencies—the EPA, the National Labor Relations Board, the Federal Trade Commission, you name it—also operate illegally. In October, the full 5th Circuit had an opportunity to rehear the case en banc and rein in the panel’s zealous attack on the government’s ability to function. But on Oct. 21, it refused by a 10–6 vote. In a sign of the times, it was George W. Bush nominee Catharina Haynes who dissented, explaining that the court should think more carefully before invalidating at least three acts of Congress and lighting the administrative state on fire. For many years, Haynes was considered a conservative judge. By the standards of today’s 5th Circuit, though, she’s a raging lefty.
One obvious benefit of shifting lawmaking from Congress to the courts is that if a litigant fails the first time, they can just try again elsewhere. For instance, seven other federal courts upheld the CFPB’s funding before the 5th Circuit decided that, actually, it knew better than all of them.
But litigants can also shop for judges within a state to ensure victory when they don’t get everything they want the first time around. To wit: On Oct. 6, a George W. Bush–appointed judge struck down New York’s restrictions on concealed carry in airports, summer camps, domestic violence shelters, childcare programs, libraries, the subway, and much more. But he upheld the ban on concealed carry in places of worship (which excluded police and guards). Gun advocates didn’t fret: They’d already brought a separate case before a different federal judge in New York—this one appointed by Trump. On Oct. 20, that judge struck down the ban on firearms in places of worship. It appears that litigants have a good shot at dismantling every piece of New York’s gun laws by planting a case before each conservative judge in the state.
These Second Amendment rulings flowed from Justice Clarence Thomas’ maximalist Bruen decision in 2022, which found all modern gun restrictions presumptively unconstitutional unless the government could identify a “historical analogue” from 1791. Thomas is on a hot streak: After winning nearly every major case last year, he’s poised to take down affirmative action, the Voting Rights Act, the Clean Water Act, LGBTQ non-discrimination law, and much more later this term. One major question has lingered, though: As more and more cases stemming from the 2020 election and Jan. 6 insurrection trickled upward to the court, would the justice recuse himself? After all, his own wife, Ginni Thomas, was involved in Trump’s attempted coup and testified before the Jan. 6 committee. Federal law requires a justice to recuse when their impartiality “might reasonably be questioned.” Would Thomas step aside to protect the court from this conflict of interest?
On Monday, we got our answer: Absolutely not. The justice issued an order halting a subpoena that compelled GOP Sen. Lindsey Graham to testify before a Georgia grand jury about his alleged election fraud. By itself, the stay was no big deal: Justices routinely issue such orders while the full court can consider the merits. What was disturbing, rather, was that Thomas participated in the first place. And unlike past justices accused of ethical conflicts, he did not bother to explain himself. The justice wielded his power without apology, taking decisive action in a case that could plausibly implicate his own wife’s participation in efforts to overturn the 2020 election.
All this arrogant defiance of judicial norms and ethics, from Kacsmaryk up to Thomas, goes on constantly in the federal courts these days. It’s probably a coincidence that the latest flurry of decisions took place just before the upcoming elections. But the timing is a helpful reminder of which institutions actually make policy and wield power in America today. No matter who wins control of Congress in November, the lawmakers who matter most are sitting on federal courts around the country, wearing black robes to create the increasingly farcical pretext of impartiality.
