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 Last week, the Trump administration repealed a health regulation that would have protected transgender people from discrimination.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.
This theme of conservatives’ hopes being betrayed at the Supreme Court has a long history on the right. President Richard Nixon appointed four new justices to the high court under a banner of law and order and strict construction, but one of them was Justice Harry Blackmun, the author of the Roe v. Wade opinion and, in his later years, a steady liberal vote.
Presidents Ronald Reagan and George H.W. Bush ran as “pro-life” Republicans and appointed five justices to the high court. But three of them — Justices Sandra Day O’Connor, Anthony M. Kennedy and David Souter — combined in 1992 to uphold Roe v. Wade against a strong conservative drive to overturn the right to abortion.
When George W. Bush became president, conservatives vowed there would be “No More Souters.” Only reliable conservatives with a known record would be sent to the high court, they said. And conservative groups began meticulously vetting and researching potential candidates, and lobbying hard for their selections.
Bush chose Roberts, a former Reagan and Bush administration lawyer who had represented anti-abortion protesters in the court, along with Justice Samuel A. Alito Jr., an appeals court judge with an unblemished record of conservative rulings.
But in 2012, with the court’s conservatives poised and ready to overturn the Affordable Care Act sponsored by President Barack Obama and approved by a Democratic Congress, Roberts switched sides and voted with four liberals to uphold the law. He said the law did nothing more than impose a small tax on those who refused to buy insurance even though they could afford it. And Congress had broad power to impose taxes, he said.
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 hand-wringing 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.
Gorsuch is also a champion of religious rights, and he is likely to join a conservative majority in a Montana case that would send more tax money to students in church schools, and in a Los Angeles case that would give Catholic schools more freedom to fire teachers.
Still, Gorsuch is not an entirely predictable vote on the right. He has a libertarian instinct and is quick to oppose unchecked government power, including when it is in the hands of prosecutors and police.
Last year, he voted with the liberals in several cases involving prisoners who were given long terms for relatively minor crimes. He wrote a dissent joined only by Justice Ruth Bader Ginsburg when the court upheld the power of the federal government and a state to prosecute a person for the same offense.
The case arose when a black man in Alabama was prosecuted twice for having a gun in his car.
“A free society does not allow its government to try the same individual for the same crime until it’s happy with the result,” Gorsuch wrote in Gamble v. United States.
Gorsuch replaced Justice Antonin Scalia, and he often talks about his approach of deciding cases based on the words of a law and the original meaning of the Constitution. Critics say that this approach leads invariably to conservative rulings.
“Rubbish” is Gorsuch’s usual retort. Faithfully following the words of the law does not foreclose liberal rulings or lead exclusively to conservative results, he has said.
Story by David G. Savage, Los Angeles Times.