The conservative evangelicals are outraged. They have described one of the judges, a Donald Trump nominee no less, as a traitor, threatened to desert the president at the ballot box in droves, and denounced the court ruling as “a grave threat to religious liberty.”
One Republican evangelical senator has talked of the collapse of the conservative judicial project, the permanent takeback of the courts from liberal control, which for many was the only justification for backing the morally compromised Trump. If the latter could not deliver the supreme and appeal courts, he was not worth supporting. Little else matters, it appears, and Trump, already declining in the polls, takes another hit.
On Monday, the US supreme court surprised everyone by ruling 6-3 that firing gays and transgender people for the sole reason that they are gay or transgender is illegal. It was an explosive judgment politically and potentially a legal turning point for the court. Made more so by the defection to the liberal minority, albeit temporarily, of Chief Justice John Roberts and Justice Neil Gorsuch, a controversial Trump nominee handpicked by the right-wing judicial activists of the Federalist Society on the promise he would reliably deliver on conservative causes. Not least on the social agenda of despised gay rights and marriage and the current hot potato of transgender rights – and all the hotly contested issues that divide the US, from abortion to gun rights, end up sooner or later in the supreme court.
Trump may have fought the ruling, but that is cutting no ice with evangelicals.
Judicial philosophy
The Trump revolution in the courts has actually been profound, promising a generational shift in judicial philosophy. He has appointed 51 appeals court judges, 143 trial court judges, two international trade court judges and two supreme court justices, two shy of 200 appointments. While the public focus has been on the supreme court, the appeals court, which delivers thousands of judgments a year, may yet prove the most profound change.
But the promised reorientation of the supreme court has never been explicitly about capturing it for “Republican” causes. The battle has been expressed in terms of contrasting judicial philosophies that are usually, but not always, proxies for overtly partisan political views.
Although one swallow does not a summer make, the court gave Trump another bloody nose on immigrant rights
The LGBTQ ruling found that in the 1964 Civil Rights Act, under Title VII, discrimination on the basis of “race, colour, religion, sex, or national origin” is prohibited – in this context the word “sex” must be seen as encompassing the status of gay and transgender people, the court ruled.
“An employer who fired a male worker because he was attracted to men discriminates against him for traits or actions it tolerates in his female colleagues,” Gorsuch wrote on behalf of the majority. “[T]he individual employee’s sex plays an unmistakable and impermissible role in the discharge decision,” he added.
The conservative minority argued that “sex” had to be interpreted as the drafters of the legislation intended, and that had they wanted to give it such a broad meaning they would have said so.
Legal interpretation
The distinction is profoundly important, marking the great battle lines between judges on the principles of legal interpretation, much akin to the divisions in theology between literalists and those who see biblical meaning evolving with time. In jurisprudence, conservatives are broadly divided between “textualists” like Gorsuch who will look to dictionaries before parliamentary records for meaning, and “originalists”.
Liberals on the supreme court, on the other hand, have traditionally been more willing to interpret ambiguity in the law in line with evolving mores and attitudes. In doing so, they are accused by the right of usurping the function of legislators. “There is only one word for what the court has done today: legislation,” wrote Justice Samuel Alito scathingly in a dissenting opinion joined by Justice Clarence Thomas. “A more brazen abuse of our authority to interpret statutes is hard to recall.”
But they were in a minority. This time. And that the decision was won in the end not by arguments about fairness and the merits of LGBTQ rights, but by a very lawyerly tussle over the principles of judicial interpretation, does not make it any less sweet for LGBTQ activists. Until Monday’s decision, it was legal in more than half the states of the union to fire workers for being gay, bisexual or transgender. On Tuesday probably a million of the 1.8 million members of the US LGBTQ community won protection from a conservative court packed by Donald Trump.
A sweet moment. Although one swallow does not a summer make, the court on Thursday gave him another bloody nose on immigrant rights. Trump’s very conservative court will still be around for a very long time.