Within 35 minutes today at 10 a.m. Eastern, what some thought was the most conservative Supreme Court of all time concocted a fundamental right to transgenderism in the context of labor law, erased the Second Amendment, and interfered with a state death penalty case, but declined to interfere with a California law that criminalizes law enforcement cooperation with federal immigration agents.
Taken in totality, the “conservative” legal movement, which has promoted the idea of “appointing better judges” rather than fighting the entire concept of judicial supremacism, has failed miserably. This was its Waterloo.
Here is a brief summary of four very important decisions and orders issued by the court today:
Taken together, these decisions show the court believes there is an inalienable right to transgenderism and illegal immigration but not to the Second Amendment. The court believes it can tamper with every state criminal and capital conviction on ever-evolving novel grounds, but it somehow believes a state can criminalize foundational federal immigration powers. A world upside down, and we only have one consistent originalist on the court in Clarence Thomas, with Justice Alito a step or two behind him.
By far, the most devastatingly consequential case of the day was the transgender “discrimination” case – Bostock v. Clayton County. Writing for the majority, Gorsuch claims that when the statute uses the term “sex,” it can apply to sexual orientation and gender identity. “An employer who fires an individual merely for being gay or transgender violates Title VII” of the Civil Rights Act of 1964, concluded Gorsuch. He was joined by the four Democrat appointees, as well as Chief Justice Roberts.
Well, it’s good to know that gender and sex are indeed not separate things, as the rainbow jihad lobby has indicated for so many years! But either way this ruling is absurd beyond belief.
Here is the relevant paragraph from Justice Alito’s dissent, joined by Thomas:
The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (emphasis added). If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation–not to mention gender identity, a concept that was essentially unknown at the time.
The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society.
It’s not even worth debating the insane illegality behind retroactively adding novel concepts to a 1964 bill, novel concepts that would have repulsed every single member who voted for that act, including black civil rights leaders. But there are also serious policy repercussions.
Supreme Court decisions dressed up as legislation are like meat cleavers as compared to real legislation. Most people nowadays don’t desire to fire someone simply because of their sexual activities at home. What this opinion, without any legislative compromise or nuance, will accomplish is to make it impossible to fire anyone for any reason who identifies as any of these new protected classes, who now have super-rights.
To begin with, title VII was very controversial at the time. It is simply unconstitutional to regulate polite behavior on the part of employers. They have the constitutional right to hire and fire whomever they want. They have the right to their property, and nobody else has a right to someone else’s property. However, it was legitimately justified because our country discriminated against black people for so long and used the boot of the state to deny them real rights, including their own property. The problem is that it has subjected employers to a nightmare of litigation to fire a black worker who happens to be underperforming. But to now add transgenderism and homosexuality to the mix is ludicrous.
What if someone comes into work cross-dressing and is extremely disruptive? What if someone is just simply a lousy worker? What about religious liberty? Does the First Amendment not mean anything? Does a Catholic school now have to hire a cross-dresser? What about demanding that doctors perform castration operations? What about allowing men who think they are women into female sports? This is yet another example of the courts creating a super-right that infringes upon a real right.
Then again, ignoring foundational rights while creating super-rights is exactly what the Supreme Court has been doing for decades. “Conservative” justices taking part are merely the icing on the cake.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.