Skip to content
A Conservative Legal Chernobyl?
Go to my account

A Conservative Legal Chernobyl?

Understanding a big day at the Supreme Court.

In the true spirit of The Dispatch, I’m writing this newsletter after pausing and thinking about yesterday’s developments at the Supreme Court, thinking again, and then thinking yet again. Yet my overall impression is still exactly the same as it was at approximately 10:05 a.m. yesterday. To quote Jack Buck, “I don’t believe what I just saw.”

Rarely have we seen such a dramatic sequence at the Supreme Court. Here’s what happened and why it matters. First, the Supreme Court released its orders list for the day, and we’ll just summarize it as the field of (broken) dreams. At a stroke it denied review of every pending case challenging qualified immunity and every pending Second Amendment case, leaving in place a body of law that directly restricts and impairs vital American civil liberties. 

Then came the second dramatic moment. In Bostock v. Clayton County, the court, at the stroke of Justice Neil Gorsuch’s pen (and with the votes of five other justices, including Chief Justice John Roberts), incorporated sexual orientation and gender identity into the scope of Title VII of the Civil Rights Act of 1964. Legislators have been attempting to amend federal civil rights law to include sexual orientation (and, more recently) gender identity, for years. And the Supreme Court just … did it. 

Before we talk about the merits and implications of the court’s actions, Republican America just received yet another reminder that presidential elections do not dictate judicial outcomes. Presidents nominate judges. Presidents do not decide cases. Judges have philosophies, and those philosophies do not always dictate the outcomes that partisans prefer. 

The examples are legion. I still have legal PTSD from Planned Parenthood v. Casey. A majority Republican-nominated court affirmed the essential holding of Roe (even as it permitted greater state regulation of abortion). My young legal mind thought, “This was not supposed to happen. We elected Reagan and Bush so this wouldn’t happen.”

Though less consequential than abortion, there are moments when Democratic nominees have broken with their party’s policies in sometimes surprising ways. The Supreme Court unanimously rejected the Obama administration’s efforts to apply federal nondiscrimination law to ministerial employees, for example. Justices Stephen Breyer and Elena Kagan broke with their Democratic-nominated colleagues to vote in favor of limited state funding for churches and to hold that the Colorado Civil Rights Commission violated a Christian baker’s rights under the Free Exercise clause when it attempted to require him to design and bake a custom cake to celebrate a gay wedding. 

It’s fair to say that philosophies produce tendencies—and tendencies can be somewhat predictable—but do not assume that you can prejudge outcomes at the Supreme Court. If you’re voting on the presumption that you can, you will be disappointed until you learn better.

Let’s talk Title VII first. If you read or listened to October’s oral argument in the case, absolutely nothing about Gorsuch’s opinion should surprise you. The plaintiffs’ arguments were aimed straight at Gorsuch’s textualism—the belief that cases should be decided on the ordinary public meaning of the text of the relevant law—and he quite obviously responded. Essentially, their argument boiled down to a simple, straightforward assertion: It is impossible to discriminate on the basis of sexual orientation and gender identity without also discriminating on the basis of sex. And by “sex,” they meant biological sex, as the term was understood when Congress passed the statute in 1964. 

Here’s Gorsuch:

Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. 

Further, it doesn’t matter that this was not the intended result of the statute. The words have meaning beyond the expectations of the drafters (interestingly, there’s evidence that the word “sex” was included in the statute as a poison pill to kill the bill—and not as the result of careful congressional policymaking). Again, here’s Gorsuch:

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

Justice Alito, to put it mildly, was unimpressed by Gorsuch’s reasoning. Here’s the key paragraph:

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.

Both Alito and Gorsuch agree on the definition of “sex.” They disagree on the application of that definition to sexual orientation and gender identity discrimination.

(Interestingly, the case rather explicitly rejects—as a legal matter—the more-radical edge of transgender philosophy, which refuses to see biological sex as distinct from gender identity. The popular phrase is, “A trans woman is a woman.” The court’s argument is that a “trans woman is a biological male.”)

What does this mean? For most Americans, not much at all. A combination of company policies and state and local laws have led to workplaces that already refused to discriminate on the basis of sexual orientation or gender identity. 

For religious institutions, however, the consequences are potentially dramatic. Should Christian colleges and schools be subject to lawsuits for upholding church teachings on human sexuality? Does this case mean that the law now views Christians as akin to klansmen, and thus brings religious institutions one step closer to losing their tax exemptions?

Not so fast. In the opinion, Justice Gorsuch goes out of his way to reassure that the guarantee of free exercise of religion “lies at the heart of our pluralistic society.” Provisions in Title VII itself provide limited religious liberty protections, the First Amendment is of course still applicable, and—as Gorsuch notes—the Religious Freedom Restoration Act also acts as a “kind of super statute, displacing the normal operation of other federal laws.” Moreover, there are a series of cases already on the court’s docket that are likely (based on judicial philosophy and court trends) to do the following:

1. Enhance the scope of the ministerial exception to federal and state nondiscrimination laws, thus increasing rather dramatically the number of employees at colleges, schools, and other religious institutions who are left outside the scope of Title VII.

2. Continue to chip away at anti-Catholic Blaine Amendments that now operate to permit state and local governments to discriminate against religious institutions in the distribution of state funds. Obliterating Blaine Amendments would place religious institutions on equal footing with secular organizations when seeking the benefit of neutral government programs.

3. Finally liberate the Little Sisters of the Poor (and other religious organizations) from participating in any way in the Obamacare contraception mandate. 

4. Protect religious nonprofits such as Catholic foster care and adoption agencies from state and local nondiscrimination laws that would require them to violate the teachings of the church as a condition of operation. 

If each of these cases is decided in favor of religious freedom (again, a big “if”), then we may reach a legal status where LGBT Americans enjoy enhanced protections in the secular workplace at the same time that religious institutions enjoy enhanced autonomy from ever-expanding nondiscrimination legal regimes. 

In other words, stay tuned! We’ll know the outcomes to the first three cases in the coming days and weeks. We’ll learn the outcome of the critical fourth case likely next year.

If the Title VII outcome wasn’t surprising, the large-scale denials of review of both Second Amendment and qualified immunity cases were almost shocking. The court had spent months pondering whether to grant review in many of these cases—behavior that often indicates that the court is seriously considering stepping in. It chose not to, and that choice has real consequences.

Indeed, both the Second Amendment and qualified immunity cases were uniquely suited for prompt judicial review. Lest we think qualified immunity doctrine is better-suited for a legislative fix, the immunity that public officials enjoy is entirely a court-created doctrine. Even worse, it directly contradicts the language of the relevant statute, which states that public officials who violate a person’s civil rights “shall be liable” to the injured party. 

Paging the court’s textualists—read that text.

The Second Amendment cert denials were equally egregious. It’s been more than 12 years since SCOTUS decided District of Columbia v. Heller, which recognized that the Second Amendment protected an individual right to keep and bear arms. It’s been a decade since the court decided McDonald v. Chicago, which applied the Second Amendment to states and cities. Since then, the court has gone silent. 

It’s true that the Supreme Court will often allow lower-court precedent to “mature” before it steps in to decide judicial disputes and to further clarify constitutional doctrine. Well, the law is indeed maturing; it’s shaving now and its voice changed. And befitting puberty, the rapidly maturing law is in a state of chaos. Here’s Justice Thomas in a vigorous dissent from the court’s decision to deny review of a remarkable New Jersey law that conditions the right to “bear” a handgun outside the home on the ability to show a “justifiable need”:

[M]any courts have resisted our decisions in Heller and McDonald. Instead of following the guidance provided in Heller, these courts minimized that decision’s framework. They then “filled” the self-created “analytical vacuum” with a “two-step inquiry” that incorporates tiers of scrutiny on a sliding scale.


This approach raises numerous concerns. For one, the courts of appeals’ test appears to be entirely made up. The Second Amendment provides no hierarchy of “core” and peripheral rights. And “[t]he Constitution does not prescribe tiers of scrutiny.” Moreover, there is nothing in our Second Amendment precedents that supports the application of what has been described as “a tripartite binary test with a sliding scale and a reasonable fit.” (Citations omitted).

In short, lower courts are making up Second Amendment jurisprudence as they go along, and they’re defying Supreme Court precedent as they do it. 

The court’s cert denials didn’t just apply to harder Second Amendment cases—such as challenges to so-called “assault weapon” bans or to bans on high-capacity magazines. They also applied to state laws that truly gut the right to keep and bear arms, including the New Jersey law outlined above (a “right” that can’t be exercised without state permission is no right at all), but also to a remarkable California law that bans semi-automatic handgun sales unless those guns contain a “microstamping” technology that isn’t yet available in the market. 

Where does this leave the Second Amendment? As one of the Bill of Rights’ weakest links. As a matter of precise precedent, the only thing the Supreme Court has clearly secured is an individual right to own a handgun inside your house for your defense. Everything else is largely up for grabs, at least until the court finally chooses to act. 

The title of this newsletter asks a deliberately provocative question. I used the language because many of the court’s Republican and conservative critics were livid after yesterday’s orders and opinions. Speaking on the Senate floor, Josh Hawley used dramatic language to condemn the court’s Title VII ruling. “If this case makes anything clear,” he said, “it’s that the bargain that’s been offered to religious conservatives for years now is a bad one. It’s time to reject it.”

The problem, however, is that neither the law nor the Constitution as written are always going to provide the outcomes religious conservatives want. Nor should they! Religious conservatives are just as subject to making unreasonable demands of the law as any other American population. Textualism and originalism reflect a particular judicial process, and that process does not always mandate any particular outcome. As the dispute between Gorsuch and Alito shows, even judges who are closely aligned can disagree when the case is difficult. 

But I’m just cynical enough to predict that in a few short days, Monday’s Twitter outrage will be flipped upside-down, with conservatives praising the court and progressives condemning it. Then, it may well flip again. This is how the court works. Its jurisprudence haltingly improves or it haltingly regresses. But all the while it sends a message to American voters that they should hear loudly and clearly—put not your trust in judges, for they will frequently let you down. 

One last thing … 

If this movie doesn’t win Netflix its first best-picture Oscar on the strength of this trailer alone, there is no justice left in this world. Here’s a preview of Will Ferrell’s latest heartbreaking work of staggering genius: 

Photograph by Bill O’Leary/Washington Post/Getty Images.

David French is a columnist for the New York Times. He’s a former senior editor of The Dispatch. He’s the author most recently of Divided We Fall: America's Secession Threat and How to Restore Our Nation.