Now some on the right are suddenly turning on Neil Gorsuch.
They are bitterly disappointed that he and another conservative justice, John Roberts, joined the liberal majority in ruling that employers cannot legally discriminate against gay and transgender people. The 6-3 decision was a landmark that stunned even gay rights advocates.
Now I can understand why people of faith and others would oppose a ruling that says they can’t fire, or refuse to hire, those with whom they fundamentally disagree.
For Gorsuch to write that the 1964 Civil Rights Act bars discrmination “based on sex” is a bitter pill for them to swallow. So they have every right to attack Gorsuch for what they see as a troubling decision and explain why it’s wrong.
But the complaints are strikingly personal. Some of them are casting the outcome as a betrayal by President Trump’s first high court nominee and impugning his character.
Carrie Severino, president of the Judicial Crisis Network, which spent millions to help confirm Gorsuch and Brett Kavanaugh, said Gorsuch had acted “for the sake of appealing to college campuses and editorial boards. This was not judging, this was legislating–a brute force attack on our constitutional system.”
So the man she vouched for in endless television appearances and lobbying efforts is now a sellout, who cares mainly about his popularity with elite media and Ivy League students?
Mark Levin, the radio host and Fox News contributor, said “Roberts no longer pretends to be a judge; now Gorsuch has left his robe behind as well.”
When Gorsuch was nominated, he went through the same dance as every other SCOTUS nominee. While he was picked for his conservative views–just as those nominated by Barack Obama and Bill Clinton were chosen for their liberal views–Gorsuch vowed to rule on each case without a predetermined agenda.
“I’m not in a position to tell you whether I’d personally like or dislike any precedent. That’s not relevant to my job,” he testified in 2017–much like nominee Roberts had promised to call “balls and strikes.” Gorsuch also said the gay marriage decision of two years earlier was “absolutely settled law.”
Why, then, is it an act of disloyalty for him to reach a decision in this case that some conservatives don’t like? Were they secretly hoping he was just paying lip service to the notion of being an umpire and would always back their agenda? Wouldn’t that be political deception?
Now there’s a perfectly legitimate debate over whether Gorsuch stuck to the original meaning of the law and the Constitution. “This was the hijacking of textualism,” Severino said of the man she championed. “You can’t redefine the meaning of words themselves and still be doing textualism.”
But Gorsuch, based on his opinion, clearly disagrees: “We must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
The conservative dissenters noted that virtually no one in America was discussing transgender identity in 1964. “Our role is not to make or amend the law,” Kavanaugh wrote. He said that the civil rights law “does not prohibit employment discrimination because of sexual orientation,” and the majority opinion “rewrites history.”
Several stories contrasted the court ruling with the Trump administration is moving to ban transgender people from the military, and eliminating a regulation barring health care discrimination against those who are transgender.
But the president was restrained in his comments: “They’ve ruled. I read the decision, and some people were surprised. But they’ve ruled and we live with their decision. That’s what it’s all about. We live with the decision of the Supreme Court. Very powerful — very powerful decision, actually.”
That didn’t surprise me, given Trump’s background as a Democrat in Manhattan. When he was running in 2015, Trump declined in interviews with me and others to criticize the Supreme Court ruling legalizing same-sex marriage. Given the broad cultural shift on gay issues, he may have concluded there was limited political benefit in criticizing this week’s ruling.
As for Neil Gorsuch, he may have lost the affection of some of his conservative supporters, at least for now, but he did show that the pledge he made before taking the job wasn’t empty words.