Gorsuch Takes the Road Less Gaveled
June 17, 2020
When he first sat down in front of the cameras and a packed Senate committee room, it was tough not to like Neil Gorsuch. The prematurely gray dad of two kicked off his opening statement talking about his wife and family -- joking about his daughters, who were probably out "bathing chickens for the county fair," his extended family and childhood pranks, the values of working hard. Gorsuch thought back to the first time he put on his black robe -- how it reminded him of the important job he had to do. He told the senators he didn't realize how big it was until he slipped on it and fell. "Everything went flying," he recalled. Now, three years later, that robe is still tripping him up. But his fall, Americans are finding out, hurts us all.
A lot has changed since Gorsuch's turn in the limelight. The man who insisted, "...Judges would make pretty rotten legislators... You can't get rid of us. It only takes a couple of us to make a decision... It would be a pretty poor way to run a democracy" is now responsible for one of the most activist rulings in U.S. history. The "Young Scalia," as he was nicknamed, who said he learned from Antonin that "words matter -- that the judge's job is to follow the words that are in the law" just replaced history's understanding of "sex" with ideas no one in 1964 could have fathomed. If you'd have told people 56 years ago that they were "voting for a bill to equate the situation of transgender people -- of whom no one had heard of since the word had not yet found its way into English -- with the situation of African-American people," Kevin Williamson argues in NRO, they'd have thought you were crazy.
And yet this "magical thinking" has completely replaced jurisprudence. It's no wonder conservatives are demoralized. They trusted Gorsuch when he was adamant about respecting the court's role, when he so humbly talked about the "modest station" of judges. They believed him when he said, "If judges were just secret legislators... the very idea of a government by the people... would be at risk." Now, he's living proof. Suddenly, we fear for our kids' classrooms, our sons and daughters in the military, the future of adoption and competition, and the vanishing hopes of any Christian to run a business or ministry without being sued.
Do you think parents will want to send their daughters into sports, knowing that biological men like Fallon Fox are bragging about smashing women's skulls? "See, I love smacking up TEFS in the cage walk who talk transphobic nonsense," he tweeted. Is that Gorsuch's America? Because when the extremists come for girls' athletics -- and they are -- this is the ring our kids are walking into. And this court, despite their sad attempt to downplay the upheaval, will have to own it. Along with every shuttered nonprofit that won't compromise their principles, every religious school in court over hiring by faith, every out-of-business employer who doesn't want a man in a dress greeting customers. It affects, Senator Josh Hawley (R-Mo.) told me on radio, "everything."
And what was the Supreme Court's response? To shrug and say, "We've created some big unanswered questions, but we'll have to resolve them later." It was like they lit a fire along the side of the road and walked away, not caring if the blaze would consume everything in its path. "It is no comfort to religious believers of any kind or any persuasion to hear the Supreme Court say, 'Yeah, your ability to conduct your ministry and your church or synagogue may be completely upended. We'll just have to find out later.'" This is why, Senator Hawley pointed out, "the courts don't legislate -- or they're not supposed to anyway, because the legislature can gather evidence, have full hearings, where it can write the bill in a very specific way. But that's not what the court did. The court adopt[ed] a sweeping rewrite of the statute. And now we're stuck with it."
So what do we do now? We make them fight for every inch they get. Could we still lose our freedom? We might. But as Christians, we're not called to win in the earthly realm. We're called to stand. And in these dark days, when lawlessness isn't just found in Antifa's black hoods on our streets but in the black robes on our courts, we can't look around and hope someone else will step in. When men try to rewrite God's truth, it's up to us to make it a ferocious battle. "We've got to stand up," Senator Hawley demanded, "and say we're not going to take this anymore."
"For religious conservatives, people of faith who labor here in the vineyard, I think that this result is going to cause people to question: What is it we've been doing? What is it we have been working toward? If this is always the result, at the end of the day, we have got to do better than this. And that's why I'm ultimately hopeful about the future, because I think that what's going to happen out of this is religious conservatives of all persuasions, of all faiths, backgrounds who belong that coalition, are going to stand up and say, 'We're not going to be quiet anymore. We are going to put forward our ideas. We're gonna raise our voices. We're not going to just be content to be relegated to the back. We're going to come up to the front now and lead."
And from now on, we should only accept other political leaders who do the same.
Tony Perkins's Washington Update is written with the aid of FRC senior writers.