Holding the Court in Contempt
June 18, 2020
At a time when Congress is lucky to scrape together an 11-percent confidence rating, a majority of Americans have expressed an unusual level of faith in our justices. Maybe they still believe SCOTUS is above the political fray. But trust in the court may become increasingly difficult after Monday's "legislative" decision by six justices to redefine the meaning of biological sex.
The Supreme Court wasn't built to write laws -- so it shouldn't be any surprise that they're lousy at it. Justice Neil Gorsuch himself said the court would make rotten legislators, and then, to everyone's surprise, set about proving it. Together with five other activists, he didn't just decide to ignore the plain text of the law when he ruled men could be women -- he ignored the plain facts of humanity. And, as far as Senator Mike Lee (R-Utah) and others are concerned, set America's future down a path of absolute chaos.
"Justice Gorsuch took a meat cleaver to the issue of how the Civil Rights Act of 1964 should apply to LGBT individuals," Senator Lee argued on "Washington Watch." And because of that, he says, Congress is going to have to "figure out how to clean up the mess." And it's a big one. "The biggest problem," he insisted, "was that he made a legislative determination. He effectively rewrote the law. And when you rewrite the law through a judicial opinion, that's a very crude way to operate. It's not precise and it leaves... all sorts of questions [especially for] for religious institutions... completely [unanswered]."
And the justices knew it. The majority was quite clear that all of these other issues their ruling created would have to wait for another day. "Unfortunately," Senator Lee shook his head, "what that really means is we're going to leave that for a lot of other days... I'm convinced that not only my children, but my grandchildren's generation will still not see the end of litigation resulting from the Bostock decision. Because when you take this kind of cleaver to federal law, it's going to take not just years, but decades to iron out all the details. And there are going to be some real heartbreaking stories in the wake of it."
How Gorsuch, a man who calls himself a textualist, could even arrive at such a conclusion is astounding. His whole logic, Lee said, is "tortured." And now the American people are the ones who have to live with the pain. Like Senator Josh Hawley (R-Mo.), who gave a floor speech for the ages on the need for conservatives to rise up and refuse to take this, Senator Lee hopes this is an aberration for Gorsuch. But either way, Republicans in particular have to "go beyond just taking [nominees] at their word... We cannot take chances anymore. There's too much on the line."
When these vacancies occur, we can't just take the establishment's word for it. We need to know from the nominees' record that they will not remake the law in their own image. If that makes the appointment controversial, so be it. Otherwise, as Senator Hawley told me on Tuesday, what's the point in even passing laws? "I mean, we may as well just let the justices tell us what they think should be the right policy in any given case."
In the meantime, plenty of liberals in Congress are hoping to move forward with laws -- dangerous ones like H.R. 5 that build on the court's extremism. A parade of smug Democrats took turns on the Senate floor this morning demanding that Congress steamroll religious freedom even more by passing the Equality Act, which would mean an end to conscience rights, girls' sports, privacy, women's shelters, free speech, parental authority, autonomy in hiring and firing, and mandate for things like transgender surgery and treatment coverage and taxpayer-funded abortion.
"It's one of the favorite tricks of the Left is to come up with legislation that has a title that... doesn't sound at all menacing... Equality Act sounds nice until you stop and examine what it would actually do... The fact that this would openly threaten religious institutions and individuals throughout America who dare have divergent views, who dare act in conformity to their religious beliefs. This would end up having a punishing effect on them. To say nothing of what it would do to women's athletics, what it would do to girls' and women's locker rooms, and restrooms in colleges and in public places. [It's] scary."
In the aftermath of the court's legislating, a lot of people are asking: Why do we need Congress? Hopefully, in stopping horrible ideas like the Equality Act, we're about to find out.
Tony Perkins's Washington Update is written with the aid of FRC senior writers.