I’ve spent much of today and this evening reading and re-reading the opinions in Bostock v. Clayton County. I respect Neil Gorsuch, whose nomination and confirmation I outspokenly supported, and I want to understand his position and reasoning. There is, however, no way to avoid the conclusion that the argument he bought is sophistical and the position he endorsed is untenable. Sam Alito’s opening sentence in dissent is devastatingly accurate: “There is only one word for what the Court has done today: legislation.”
The legislation handed down by the Court will have far-reaching consequences, including the eventual destruction of all-women’s sports. As I tell my students, and constantly remind myself, “remember, when you sign on to a proposition you are signing on to all it logically presupposes and entails.” It’s very well to say, “thus and so matter is not before the Court and we haven’t had the benefit of adversarial briefing and argument,” but that does not cancel the mercilessness of logic. Reasonable people of goodwill can and do disagree about whether the logical and therefore foreseeable consequences of this piece of judicial legislation are good or bad, desirable or undesirable; but whether one favors or opposes legislation designed to produce those consequences, one should condemn the decision precisely because it is legislation. The Court has not applied the law as written; it has re-written the law.
The Bostock ruling (further) politicizes the judiciary and undermines the very thing courts exist to uphold: the Rule of Law. It will destroy what faith remains in the moral and intellectual integrity of our courts. It also vindicates Adrian Vermeule’s warning to conservatives that trying to combat the longstanding “progressive” strategy of imposing a substantive moral-political agenda through the courts by appointing “originalist” and “textualist” judges is hopeless. Conservatives, Professor Vermeule famously argued, need to shift to their own version of liberal legal theorist Ronald Dworkin’s “moral reading” of the Constitution and laws to advance a socially conservative moral and political vision. Who is to gainsay him now? One might say–I have myself said, repeatedly, in my criticisms of my teacher Professor Dworkin–“The so-called moral reading can only function as a pretext for legislating from the bench. It abandons the idea of law and the ideal of the Rule of Law, erasing the distinction between adjudication and legislation, law and politics.” But that observation (which I continue to believe is true) either from increasingly warranted cynicism or sincere conviction (or a bit of both) will be met with the rejoinder: “The idea and ideal were abandoned long ago. Have you only just noticed? It may be sad, but it’s all-too-true. To continue trying to shore them up is a fool’s errand. It could only work when both sides in a political or ideological struggle play by the rules. But nearly all Democrat-appointed judges and half the Republican-appointed judges refuse to play by them—always to the advantage of secular progressive ideology and in furtherance of its goals. It’s a different game now. For conservatives to suppose otherwise is for them to adopt the pathetic and degrading role of the Washington Generals: showing up every night at a rigged game to be the losers.”
Some people are questioning Justice Gorsuch’s good faith and saying that he betrayed the conservative movement and the Republican Party. These, I think, are misguided claims. Judges and justices, whether nominated and confirmed by Republicans or Democrats, whether supported by conservatives or liberals, owe their supporters and their party precisely (and nothing more than) what they owe everyone else, namely, a faithful application of the Constitution and laws as written. The tragedy of Bostock is that, despite Justice Gorsuch’s desire to practice an authentic textualism, he failed to provide that, just as previous Republican appointees Sandra Day O’Connor, Anthony Kennedy, and David Souter so often–and often spectacularly–failed to provide it. Such failures always wound the Rule of Law. Coming on top of so many other cases in recent decades, this one may finally discredit it in the eyes of many who have struggled to retain their faith in it.