The Triumph Of The Constitutional Canard
By CHRISTOPHER MANION
“This is a gross canard, cut out of whole cloth!” — Arthur Goldberg, U.S. ambassador to the UN and former justice, U.S. Supreme Court, June 6, 1967.
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When Fr. Paul Scalia presided over the funeral Mass of Judge Robert Bork eight years ago, he made a cheerful observation. “Bob was a hopeful man,” he said. “Of course he wasn’t an optimist.”
When it comes to the Supreme Court, the high hopes of many an optimist have been dashed on the rocks of sobering reality. It’s been going on for years. Dwight D. Eisenhower pointed to his nominations of Chief Justice Earl Warren and Justice William Brennan as the “two biggest mistakes” of his presidency. On a golfing trip to the Wisconsin north woods in the 1960s, Ike complained to a local newsletter editor that both men had “lied through their teeth” during their interviews.
Maybe they had; and certainly “mistakes were made.” We recall that was California Gov. Earl Warren who pulled off the “Texas Steal” that robbed Sen. Robert Taft of the 1952 Republican nomination and put Eisenhower in the White House. Had Ike made a deal with the devil to pull that off?
Many years later, Reagan administration officials at the Justice Department discovered that Brennan’s nomination had been a case of mistaken identity. Brennan’s speech at a legal convention in New Jersey had apparently impressed Ike’s attorney general, the story goes, so he recommended Brennan to succeed Justice Sherman Minton. Unfortunately, it turned out that it wasn’t Brennan’s speech at all. A fellow lawyer who had fallen ill had asked Brennan to do him the favor of delivering his text at the gathering.
Republican presidents seemed to have a knack of making bad choices for the court. The ghosts of Sandra Day O’Connor, Anthony Kennedy, and David Souter still haunt the Senate Republican cloakroom. But maybe Donald Trump would be different! “Liberalism’s great strategic ally and asset of 60 years, the judicial dictatorship erected by Earl Warren and associates, may be about to fall,” Pat Buchanan wrote in these pages two years ago. “Judicial supremacy may be on the way out.”
Many of us shared Pat’s enthusiasm. President Trump made judges a top priority. A crack team advised him on appointments to the federal bench. Straight-shooter Neil Gorsuch had been confirmed with 54 votes in April 2017, a heartening sign that Justice Scalia’s tradition would not only continue, but expand, with the prospect of more solid nominations to come.
And then came last Monday’s majority decision redefining the term “sex” in Title VII of 1964 Civil Rights Act. Sex is now “gender ideology.” Even USCCB President Archbishop José Gómez complained. The ruling was that bad.
But what hurt the most was, Justice Gorsuch wrote it. With a wave of the judicial wand, he magically transformed the word “sex” into nominalist hash. The Garden of Eden has been turned upside down, and so have the Laws of Nature and of Nature’s God.
The ruling ignores not only the natural law but the flawed rules of legal positivism as well. There, at least, bad laws that condone mass murder call it by its proper name. Not Justice Gorsuch. He goes full-bore Humpty Dumpty.
Courting Disaster
“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master — that’s all” — Lewis Carroll, Through the Looking Glass.
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For Gorsuch, the Supreme Court is the master, legislating at will regardless of the intent of the founders or the Congress. Hence, per Gorsuch, an employer cannot discriminate against a man pretending to be a woman or vice versa.
Chaos will prosper. If a drag queen applies for a position in your organization, even if you’re running a boy’s summer camp or a Catholic seminary, you can be sued if you don’t hire him. Affirmative Action for drag queens is sure to follow.
The anti-family left is going to have a field day. In recent years graduates of even top-tier law schools have had trouble finding work. Not anymore. The LGBTQ network is already powerful in major institutions — media, entertainment, law, government, academe, and large corporations — but now they’re coming for you with a pack of frenzied legal hacks.
Small businesses struggling to recover from the lockdowns will face razor-thin margins as they slowly rebuild their staffs. They will now face the daunting burden of fending off lawsuits from those among the 45 million unemployed who demand hiring preference under the Gorsuch Rule.
That challenge will be compounded by an avalanche of discrimination lawsuits against those already employed. Do you dare have a crucifix visible on your desk? Or a Miraculous Medal around your neck? Rainbow flags will be welcome, of course, but those “systemic symbols of homophobic bigotry” have no place in a “woke” organization. Human resources departments will rule that such artifacts in themselves discriminate against the always-offensive, always-offended “LGBTQ.”
Also forbidden will be the employer’s quiet apology to customers and staff that “I’m sorry, I was forced to hire him, don’t blame me.” Under the new ruling, such comments will bring on another wave of lawsuits. Trannies have very fragile feelings, after all.
And original intent? In 1964, this “sex as gender ideology” canard would have lost 435-0 in the House and 100-0 in the Senate. Once more, echoing Planned Parenthood v. Casey, Obergefell, even Roe, the Court has defied the doctrine of separation of powers by rashly usurping the powers of Congress to write legislation, and rewriting language itself in the bargain.
So will Congress respond by challenging this brazen invasion of its constitutional powers? Of course not. Proper legislative consideration of this explosive issue would require hearings, town hall meetings in every district, massive demonstrations, and, given today’s rules, perhaps riots as well. The debate would last for months. Ultimately, members would be required to vote on the record.
That would be a disaster. Much easier to blame the Supreme Court. Now members can just shrug it off when folks back home complain.
Will conservatives be dismayed? Of course. Many praying for another Trump Supreme Court appointment might now be tempted to think, “Once bitten, twice shy.” The impact will be widespread. It will affect every workplace, every worker, every Church, every Christian, every American.
The Supreme Court has inflicted grave damage on the public weal in the past 100 years. Let us pray that future generations will not consider the Gorsuch Rule to be our constitutional republic’s suicide note.
An Unhappy Anniversary
This week marks the second anniversary of the announcement from the Archdiocese of New York that Theodore Cardinal McCarrick had been credibly accused of sexual abuse of a minor and was removed from ministry. While dozens of our bishops demanded an investigation, the cardinal archbishop of Chicago successfully shut down the entire U.S. Conference of Catholic Bishops that November. Citing a vague Vatican mandate, he effectively ordered his colleagues not to mess with the McCarrick Machine.
The Vatican would conduct the investigation, we were told — and then Archbishop Carlo Maria Viganò, the former papal nuncio in Washington, dropped a bomb. Pope Francis himself was McCarrick’s most powerful ally, Viganò claimed, and the alliance included powerful prelates in the United States. Viganò named Cardinals Wuerl, Cupich, and Tobin, as well as the notorious Bishop Robert McElroy of San Diego, a brazenly left-wing activist who is widely expected to be appointed a major see under Pope Francis.
This litany of enablers was disputed at the time, but events have proven Viganò right. The “Deep Church,” as he recently called the Catholic version of the Deep State, has successfully quashed any prospect of an honest report.
In 2018, Social Security actuarial tables gave McCarrick a life expectancy of two years. Alas, the McCarrick Report will be buried with him.
