The inimitable Ed Whelan of National Review has drawn attention to a recent letter sent by the Supreme Court’s Office of the Clerk to two groups, who filed amicus briefs on behalf of sexual sanity, demanding they refer to a transgender girl as a “he.”
In Grimm v. Gloucester County School Board, the family of Gavin Grimm, a girl who is unfortunately suffering from a mental disorder, is demanding that the local school allow her to use the male bathroom.
The fourth and sixth circuits have already redefined human sexuality through the 14th Amendment (adopted in 1868) and Title IX (adopted in 1972)! The school district appealed the decision to the Supreme Court, and the high court recently requested more briefs from both sides.
It would be absurd enough for the court to get involved in such a decision to begin with, but it is especially illogical to take the transgender side of things as the default position before the case is even decided.
As is the case with all high-profile issues, groups on both sides filed amicus briefs in support for one of the litigants. When Liberty University and Professor John Eastman filed briefs, the Office of the Clerk sent back the following message:
The current Office of the Clerk, which handles the flow of cases, proceedings, filings, and recordings (not to be confused with individual law clerks of Supreme Court justices) is run by Scott S. Harris. This particular letter was signed by one of the assistant clerks, Denise McNerney.
As Whelan notes, this move was likely triggered by the public complaint from a radical leftist writer at Slate Magazine. But why would the clerk’s office feel pressure from a random left-wing writer to enforce such a bizarre misinterpretation of a filing rule when such a move would signal the court’s bias on the underlying merits? It would be absurd enough for the court to get involved in such a decision to begin with, but it is especially illogical to take the transgender side of things as the default position before the case is even decided.
Later on, after Whelan made further inquiries, the clerk’s office admitted that there is no such rule forcing amici to use the case title listed in the court’s docket, just this clerk’s own personal view that “parties generally should use” the docketed case title.
Clearly, the prudent thing to do is to allow both sides to use either pronoun, but certainly not to make one (the anti-scientific term, by the way) the default position.
However, McNerney rushed to enforce her random guidance just in this case for obvious political reasons. In this case, McNerney violated her oath of office to “faithfully and impartially discharge” her duties (28 U.S. Code §951).
The court system is so far left, it has already decided to redefine the most immutable laws of nature. And this comes on the heels of another district judge’s decision (this time, in Pennsylvania) to codify transgenderism into the 14th Amendment.
Yup, there is no right to freedom of conscience, private property, or the Second Amendment, but somehow an amendment written in 1868 was intended to give someone the right to use a bathroom meant for the opposite sex.
As James F. Wilson — chairman of the House Judiciary Committee who oversaw the drafting of the Civil Rights Act of 1866 and the 14th Amendment — noted at the time, the Equal Protection and Due Process clauses were “establishing no new right, declaring no new principle,” but rather codified in order to reiterate and “to protect and enforce those which belong to every citizen.”
No new principle indeed! Had Wilson only known his amendment would lead to lawfare with the power to alter an X chromosome. (No doubt, this principle of transgenderism comes from the same legal right to immigrate.)
This case further exposes another uncomfortable reality for conservatives regarding the courts: Last year, I listed 12 reasons why the federal judiciary is irremediably broken. Grimm reveals a 13th. The “deep state” of the judiciary, much like the deep state of the executive branch, is full of leftist lawyers no matter who sits on the court. And this is true up and down the lower courts. But unlike the executive branch, the judiciary is wrongly regarded as wielding the power of the supreme law of the land.
Chief Justice Roberts should rebuke McNerney and other staff who seek to tip the balance to one side of a litigation. Moreover, Congress needs to reassert its authority over some of these practices. Remember, unlike with the executive branch where the president has full authority over personnel, the judicial branch staff is completely subject to statutory regulations placed by Congress. Contrary to popular thought, the judiciary is not wholly independent from Congress (and certainly not “supreme”).
Unless Justice Kennedy miraculous discovers his inner intellectual honesty, we know how this case will end. Grimm will be the transgender version of Obergefell in which the most immutable law of nature is redefined.
Republicans were appallingly silent after Obergefell, and nothing indicates they will respond more vociferously to Grimm. I have already laid out a plan for the other two branches to fight back against the redefining of sexuality here and here. The question is, “Will Congress continue to remain silent as unelected judges (and even unelected clerks) redefine marriage, sexuality, and the sovereignty of a nation?”