By DEXTER DUGGAN
While the U.S. Supreme Court went outside proper legal procedures to devise its mandate favoring sexual disorientation in Bostock v. Clayton County, Georgia, there would be multiple impacts far beyond the High Court’s walls.
The nation saw still more damage to its people and society from this contrivance announced on June 15 in the cause of advancing moral rebellion shielded by the black-robed bench, this time written by President Trump’s relatively recent nominee, Associate Justice Neil Gorsuch.
The court’s impermissible legislating from the bench supposedly was done in the interest of clarity in 2020 in forbidding sex discrimination as prohibited by Title VII of the Civil Rights Act of 1964.
The Gorsuch majority indefensibly expanded the concept of sex discrimination to include sexual orientation and subjective gender identity — concepts never intended by Congress in 1964, and never passed by Congress since.
The website of the U.S. Equal Employment Opportunity Commission says: “Title VII prohibits employment discrimination based on race, color, religion, sex and national origin.”
Meanwhile, conservatives had to weigh some serious questions arising, one of them rather immediate, and another flowing from it.
How would Bostock affect President Trump’s reelection, and what was to become of the foundational belief that if only a conservative majority of legal scholars could be placed on the court after decades of political blood, sweat and tears, then moral tradition and sanity would be preserved, to the well-being of the nation?
Having been sharply disappointed in June by one of Trump’s acclaimed picks to the High Court, would some or many conservative voters be less motivated to turn out for the president in November? And even if they did, would they have less confidence in the results of another Supreme Court vacancy he might have the opportunity to fill?
Bostock was delivered at a time when the U.S. already was wrenched by rioting and looting leftists supposedly protesting racism, even while the coronavirus pandemic still pummeled society.
The political levers of left-wing power in society were revealed even here, when politicians and other officials welcomed and praised the “anti-racism” crowds packed together on the streets, even while they continued to warn against ordinary people starting to come outside, even if socially distanced, because of the power of the germs.
Veteran pro-life activist Michael Hichborn, president of the traditional-values Lepanto Institute, lamented at Facebook on June 15, just after the Supreme Court ruling, that “2020 is officially the worst year on record.”
The times were a graphic reminder that traditionalists should work as if everything depended on them, but to pray as if everything depended on God.
A longstanding basic defense for voting Republican is that GOP victories eventually would deliver the desirable kind of courts, preeminently the High Court, and these bodies would reject left-wing assaults on good sense and the Constitution itself.
Such a High Court would rule on what the law actually said, not on what leftists imagined the law should say if only the Founders and their proper successors had been as smart as said leftists.
After Trump assumed the presidency, he faithfully delivered on his promise of filling two Supreme Court vacancies with apparently impeccably credentialed jurists who had been on his 2016 pre-election list of those he’d choose from, Gorsuch and Brett Kavanaugh.
Trump kept his word, but Gorsuch deflated expectations on June 15. This wasn’t Trump’s fault, but Gorsuch may have taken more glow off a Trump reelection campaign already confronted with other challenges. The least of which, though, was lackluster Dementia Dem Joe Biden, a fierce foe of traditional morality wrapped up in a wan package, Trump’s presumptive main opponent in the November election.
Gorsuch replaced the late conservative Justice Antonin Scalia, while Kavanaugh served to tilt the balance by taking the seat of “moderate” retired Justice Anthony Kennedy.
Behold, the court held a narrow conservative majority, five to four. Of course, that meant one of the conservatives still could break ranks to join the four liberals for a majority on their side. But at least one of the liberals also might choose to join the five conservatives in an opinion, delivering at least six to three for the traditionalists’ side.
Alas, the court’s liberal justices break ranks about as often as their liberal Democrat politician friends, which means approximately never. And just as true, the conservative justices are more likely to wander here and there like conservative GOP politicians — most frequently Chief Justice and somewhat conservative John Roberts.
Thus, Bostock was written by the supposedly impeccable Gorsuch, joined by wanderlust-struck Roberts, giving the lockstep four liberals a six-to-three majority.
There are considerations beyond the strictly legal that are pitfalls for these judicial conservatives, such as a desire to please some dominant quarters in the national structure, the social pressures in the Beltway bubble, and even the power of threats both outright and more covert.
Who can forget, for instance, left-wing, pro-abortion Senate Minority Leader Charles Schumer (D., N.Y.) just last March at a raucous rally near the High Court’s building? He threatened Gorsuch and Kavanaugh by only their last names that they better vote the way he wanted on a Louisiana law under review that provided health protections for women at abortuaries.
“You have released the whirlwind, and you will pay the price,” Schumer fulminated in the tenor of a mob boss. “You won’t know what hit you if you go forward with these awful decisions.”
National conservative commentator Quin Hillyer told The Wanderer on June 17: “Conservative jurists will not always walk in lockstep. It is extremely frustrating to see Justice Gorsuch (and the never-reliable Chief Justice Roberts) produce a decision this bad, but it’s still far better to have a Gorsuch whose reason may go haywire than to have a Justice (Sonia) Sotomayor who will almost always determine what liberal outcome she wants and then make up a way to get there.
“That’s why it’s always better to have judges chosen by those somewhere on the right than by those somewhere on the left,” Hillyer added.
In a column posted at the New York Post on June 15, legal commentator Josh Hammer noted, as did many others, that leftists repeatedly failed to expand the definition of sex discrimination in Congress — until Trump’s Justice Gorsuch, acting as though he’s a legislator, suddenly did it for them.
“Speaker Nancy Pelosi tried to enact much of this agenda legislatively in 2019 with the so-called Equality Act — and failed,” Hammer wrote. “All it took was a Republican justice to impose it — nationwide via judicial fiat.
“Religious employers’ conscience rights aside,” Hammer continued, “long-settled employment law has now been thrown into chaos. The court concedes that such issues as sex-specific bathrooms, locker rooms, and sports teams will be on the chopping block in future litigation.
“As my former boss, Judge James C. Ho of the Fifth Circuit, noted in a similar case last year, the underlying legal issues ‘affect every American who uses the restroom at any restaurant, buys clothes at any department store, or exercises at any gym’,” Hammer said.
The Gorsuch majority’s ruling was called shocking and surprising. But also, no doubt, routinely gratifying to imperious leftists grown used to courts imposing what democratic governance would not.
Defund SCOTUS
Gary McCaleb, a longtime Arizona attorney-activist for traditional values, posted on Facebook on June 15 that he agreed with the analysis at National Review by Ed Whelan, president of the Ethics and Public Policy Center, on Gorsuch’s handiwork in Bostock. McCaleb added a thought on the High Court itself.
“Mr. Whelan cuts to the core here: In a sadly ironic bit of doublethink, Justice Gorsuch dismisses standard statutory analysis as raw policy choices, while making his own raw policy choice to rewrite Title VII to protect not sex, but affectional preferences and gender-identity ideology,” McCaleb said.
“Even gender-identity advocates admit that gender is not sex, and as my feminist friends note, that ideology erases women.”
In addition, McCaleb said, “I’m beginning to think that the Supreme Court has run its course; perhaps it is time to defund SCOTUS and settle appellate splits by establishing a plurality of appellate courts landing in the same place. Slower, but SCOTUS is no speed demon now and at least congressional intent would not rest on two ‘textualists’ who are not.”
Whelan posted at National Review on June 15 that Justice Samuel Alito, dissenting, “explains that the proper textualist inquiry concerns what the words of a law ‘conveyed to reasonable people at the time’ it was enacted. . . . ‘Textualists do not read statutes as if they were messages picked up by a powerful radio telescope from a distant and unknown civilization. . . . In 1964, ordinary Americans reading the text of Title VII would not have dreamed that discrimination because of sex meant discrimination because of sexual orientation, much less gender identity’.”
Whelan went on to say that “the longstanding acceptance of sex-specific restrooms, locker rooms, shower facilities, and dress codes — all of which require taking account of an employee’s sex — severely complicates Gorsuch’s claim that any employer policy that requires taking account of an employee’s sex clearly discriminates on the basis of sex under Title VII.”
The conservative Liberty Counsel website quoted from Justice Kavanaugh’s dissent: “I have the greatest, and unyielding, respect for my colleagues and for their good faith. But when this court usurps the role of Congress, as it does today, the public understandably becomes confused about who the policymakers really are in our system of separated powers, and inevitably becomes cynical about the oft-repeated aspiration that judges base their decisions on law rather than on personal preference.”
Joy Pullman, executive editor of The Federalist website, posted on June 16: “When courts legislate, they disenfranchise the people. They invalidate our votes, our God-given natural right to rule ourselves. By adding words to statute that Congress did not put there, and has repeatedly and explicitly refused to add, these judges are destroying our Constitution, our way of life, the people’s sovereignty, and thus our human dignity.”
Conservatives can’t let Republicans get away with big talk while pretending that the bureaucracy and judiciary are beyond being disciplined, Pullman said.
“They’d prefer to give rousing speeches about our rights at conventions like CPAC while scapegoating our continued loss of these rights on the judges and the bureaucracy they’re supposed to oversee. That needs to end, and for it to end, all constitutional hypocrites need to be made uncomfortable until they do the right thing,” she said.
Pullmann added that some of the justices who “just passed an LGBT version of Roe v. Wade” were put on the court by Republicans.
No One Has Agreed To This
The Washington Examiner editorialized on June 17: “Title VII of the Civil Rights Act of 1964 forbids discrimination based on ‘sex,’ full stop. It doesn’t address any issues of sexual practice or gender self-identification. Nor would it have passed Congress in 1964 if it had tried to do so. In other words, no one ever agreed to what these judges are now imposing….
“Gorsuch’s premise is wrong. Men and women are naturally different, in profound ways,” the Examiner added. “These differences would persist in a world of full legal equality. We say this not based upon religious belief, but upon political, biological, cultural, and legal realities that no amount of casuistry can erase.”
Also on June 15, again thumbing its nose at the rule of law and American citizens, the Supreme Court declined to take up the Trump administration’s case against California’s 2017 “sanctuary” law for illegal aliens, which defies federal law.
Southern California’s Orange County Register posted on June 15 that county Sheriff Don Barnes said he believes the law has made the state less safe: “Communication among law-enforcement partners on shared threats is critical to the safety of all members of the public. I urge lawmakers to reconsider this law.”
The Register reported: “The law prohibits state and local police from asking people who’ve been arrested — except for those charged with serious crimes — about their immigration status. It also bars police from notifying federal agents when an immigrant is being released from jail, or from holding an immigrant after their release date so they can be transferred to immigration authorities.”
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