I take no pride in watching the grim thesis of my book being proven right on a daily basis, but once again a GOP appointed judge signed onto the most radical legal theories of the legal profession. Judge Thomas Shroeder, of the United States District Court for the Middle District of North Carolina, sided with the transgendered lobby and issued an injunction against the portion of North Carolina’s HB 2 that prevents men who think they are women (or vice versa) from using female private dressing rooms and bathrooms on the UNC campus. Shroeder is a George W. Bush appointee. Clearly, if we can’t count on a GOP judge to allow a state to maintain the most basic laws of civilization, there is no hope in fixing the courts through conventional means.
On Friday, Judge Shroeder tipped his hand in the ACLU/DOJ lawsuit against HB 2, offering the first indication that he is likely to “strike down” parts of North Carolina’s most common sense law on the books. In an 83-page opinion, Shroeder said plaintiffs, individuals who are confused about the most immutable laws of nature, “are likely to succeed on their claim” that Title IX of the Education Amendments of 1972 mandates that states accommodate transgenderism in an education setting. A decision on the merits will come some time after oral arguments late in the Fall.
Some conservative supporters of HB 2 have expressed optimism at the fact that the judge did not issue a sweeping injunction against the law, opting for a preliminary injunction on enforcement only against the three plaintiffs named in the lawsuit. Moreover, on the underlying constitutionality of HB 2, Shroeder said that the plaintiffs failed to make “a clear showing” on how HB 2 violates the Fourteenth Amendment’s Due Process and Equal Protection Clauses. He outright denied the request for a preliminary injunction on Equal Protection grounds and reserved judgment on the Due Process claim.
However, if this is what we call a victory in the courts, we have already lost our republic. As I noted with regards to the ongoing litigation on the issue of early voting, the fact that a state even needs to spend months of time and millions of dollars defending the most basic powers of a state is ridiculous. That any judge, much less a decent Republican judge, can suggest that the 1972 statute was designed to include transgenderism is preposterous. And that we can even entertain that the Fourteenth Amendment, which was ratified in 1868, mandates that states accommodate transgenderism shocks the consciousness of anyone who respects our system of government. What is there to reserve judgment? How can any originalist possibly believe there is a fundamental due process right — as a matter of constitutional dictate — for a guy with male plumbing to use female facilities?
I am not writing this to cast aspersions on Judge Shroeder. It is clear that he felt bound by the “precedent” already established in his jurisdiction by the Fourth Circuit Court of Appeals, which codified transgenderism into Title IX in Gavin Grimm v. Gloucester. Indeed, a Republican federal judge in Texas, which is under the jurisdiction of the Fifth Circuit, clearly rejected the notion that Title IX mandates transgender accommodations. However, what this case demonstrates is that the entire statutory construct and Fourteenth Amendment jurisprudence in the legal system is irremediably broken. Even if we’d somehow win the presidency, fill Scalia’s seat, replace either Kennedy or Ginsburg with an originalist on the Supreme Court, there is enough existing nuclear Fourteenth Amendment jurisprudence — of which even “originalists” will never reverse — to destroy the states on any issue that the Left can make about race and identity, which is pretty much everything.
Furthermore, the radical lower courts and the legal profession (ACLU, NAACP, etc.) will continue to attack the most common sense state laws from new and more convoluted legal angles that were not directly addressed in the inevitable narrow Supreme Court victory we might get out of “a more conservative SCOTUS.” It could then take years for states to uphold their laws, if ever, after they are forced to fight trench warfare against every provision of every common sense law. State elections have been rendered moot by the veto authority of the federal judiciary — a power that was never vested in that branch of government.
This is why I feel vindicated for arguing in Stolen Sovereignty (order your copy online!) that Congress must strip the courts of their ill-gotten jurisdiction over state laws, at least as it relates to social questions. And if Congress fails to do its job, states should follow Alexander Hamilton’s advice and treat the judiciary’s usurpations as illegitimate acts. If the definition of sexuality itself as it relates to private dressing rooms in state institutions is not a question over “internal order” over which Madison said states have full power, then nothing is within the purview of the state.
Although it will take a Republican president to sign any judicial reform package from the GOP Congress, there is something Republicans can do immediately to help North Carolina. When they pass the FY 2017 budget bill in late September, House leaders owe it to North Carolina to defund any DOJ legal action taken against the state for passing HB 2.
Whether it’s forcing Congress to do its job or taking its destiny in its own hands, North Carolina must realize that the courts will never be on their side.
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Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.