Ross Douthat: Neil Gorsuch ‘Arbiter of Sexual and Religious Liberties’

Sept. 19, 2019, U.S. Supreme Court Justice Neil Gorsuch spoke at the LBJ Presidential Library
LBJ Library/Flickr

Conservative New York Times columnist Ross Douthat observed Saturday that, with his decision in the arena of gay and transgender rights, Supreme Court Justice Neil Gorsuch made himself the “arbiter of sexual and religious liberties.”

“[P]olitics abhors a power vacuum, and our juristocracy has claimed new powers in part because Congress doesn’t want them,” Douthat asserted, adding, “The Supreme Court, clothed in meritocratic authority, seems more like management than Congress.”

In Boston v. Clayton County, a 6-3 Court redefined male or female “sex” to include “sexual orientation” and “gender identity.” Whatever religious liberty issues should arise from that redefinition, Gorsuch decided were “questions for future cases.”

Douthat wrote that, with Congress shrugging its shoulders, Gorsuch, apparently unrestrained by his “Federalist Society pedigree,” decided to take “the burden on himself, discovering the desired protections in the text of the 1964 Civil Rights Act (an act of sophistry, not interpretation).”

Douthat, author of The Decadent Society: How We Became Victims of Our Own Success, underscored it has become almost accepted in contemporary America that it is the job of the Supreme Court to settle some of the nation’s most significant issues:

Today constitutional amendments have become unimaginable, Congress barely legislates, and the Supreme Court manages our social and cultural debates. Our affirmative action system was designed by Lewis Powell and amended by Sandra Day O’Connor. The boundaries of voting rights and free expression are policed by John Roberts. Our abortion laws reflect the preferences of Anthony Kennedy. And now anti-discrimination law and religious liberty protections will reflect what Neil Gorsuch, author of the new decision, thinks is right and good.

Republican nominees to the Court are appearing to “swim leftward on social issues,” he continued, a situation that has “reassured liberals that judicial power is just a natural extension of meritocracy.”

At progressive Slate, Simon Lazarus wrote of “the progressive judicial project” and suggested the stunning 6-3 decision in Bostock “with conservative Justice Neil Gorsuch making the textualist case for this landmark protection,” should perhaps cause progressives to consider textualism is not so bad after all.

For Douthat, however, and conservative lawmakers such as Sen. Josh Hawley (R-MO), the concern is that many Americans believe this is how the system of government is supposed to work and that it is the role of the Supreme Court to decide cultural and social issues.

On the floor of the U.S. Senate, Hawley described Gorsuch’s decision:

This piece of legislation changes the scope of the 1964 Civil Rights Act. It changes the meaning of the 1964 Civil Rights Act. It changes the text of the 1964 Civil Rights Act. In fact, you might well argue it is one of the most significant and far-reaching updates to that historic piece of legislation, since it was adopted all of those years ago, and, make no mistake, this decision, this piece of legislation, will have effects that range from employment law, to sports, to churches.

The senator declared the majority’s ruling in Bostock “represents the end of the conservative legal project as we know it”:

After Bostock, that effort, as we know it, as it has existed up to now, it’s over. And I say this because if textualism and originalism give you this decision, if you can invoke textualism and originalism in order to reach a decision, an outcome that fundamentally changes the scope and meaning and application of statutory law, then textualism and originalism and all of those phrases don’t mean much at all.

Like Douthat, Hawley noted modern-day lawmaking in America is the job of “unelected bureaucrats and courts,” neither of which are the elected representatives of the people.

Douthat observed the cost of indifference to Americans.

“What sort of Republic this is, and whether we will keep it, is for a higher court than Neil Gorsuch’s to decide,” he concluded.

Breitbart News reached out to the Federalist Society for comment on Gorsuch’s opinion but received no response.

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