The significance of this story is that the legislative system in the US needs to be reformed and that measures need to be taken to ensure that the Office of the President and Congress can return to being the true legislators in America. Our left-leaning friends would be well advised to concentrate on these reform processes rather than on idiotic slogans about “the lives of cats matter” and “defund the Pentagon” which sound good but lead exactly nowhere. Cheers.
The Tempting of Neil Gorsuch
Another conservative justice’s arc bends toward juristocracy.
It might surprise contemporary Americans that for most of our history, what we call “culture war” debates — arguments about rights, social justice, the moral organization of society — were often settled through democratic deliberation, rather than the kind of ruling the Supreme Court just delivered on gay and transgender civil rights. Congress debated and passed laws. State legislatures did the same. Constitutional amendments were proposed, passed, ratified — and when necessary, repealed.
This was true even when the debates in question led to the Civil War. In 1864, while Grant and Sherman prepared their offensives, Abraham Lincoln didn’t demand that the Supreme Court declare slavery unconstitutional. Instead he pushed the Senate to amend the Constitution to abolish it.
Subsequent battles over Catholicism and public education, women’s suffrage and temperance all had similar legislative goals. The long struggle for civil rights was aided by Brown v. Board of Education and Loving v. Virginia, but the crucial action was in Congress, where the major civil rights laws ultimately passed. The following decade, feminists naturally sought their own constitutional amendment, the E.R.A., and its defeat was seen as a milestone in conservatism’s rise.
All of those battles belong to a lost world. Today constitutional amendments have become unimaginable, Congress barely legislates, and the Supreme Court manages our social and cultural debates. Our affirmative action system was designed by Lewis Powell and amended by Sandra Day O’Connor. The boundaries of voting rights and free expression are policed by John Roberts. Our abortion laws reflect the preferences of Anthony Kennedy. And now anti-discrimination law and religious liberty protections will reflect what Neil Gorsuch, author of the new decision, thinks is right and good.
Occasionally, a conservative ruling or Republican appointment threatens to inspire a left-wing revolt against the juristocracy. But the courts have not yet claimed as much power over economic policy as over social policy, and the willingness of Republican appointees to swim leftward on social issues has reassured liberals that judicial power is just a natural extension of meritocracy.
This means it’s been left to religious conservatives — the losers in many of the court’s culture-war decisions, going back to the school prayer rulings after World War II — to make the consistent case against the judicial usurpation of politics.
In making that case conservatives have championed constrained schools of legal interpretation, originalism and textualism, against a values-driven jurisprudence. A “living constitutionalism” naturally usurps democratic powers, the argument goes, in a way that a jurisprudence bound to textual language or original intent does not.
There was power and plausibility in this view, especially as embodied in the brilliance of the late Antonin Scalia. But it always reflected a slightly naïve view of how power works and grows.