One of Donald Trump’s biggest selling points for reelection—and a position embraced by the Republican Party—is the conservative makeover of the federal judiciary that has taken place in the last three plus years.
No more legislating from the federal bench, they have promised, but rather a return to the original intent of the authors of the Constitution and the legislators who passed federal laws. Trump’s two conservative appointments to the U.S. Supreme Court are held out as leading examples of this sea change.
Well, Republicans may want to reconsider that selling point now that THEIR conservative Supreme Court ruled Monday that people can’t be fired because they are gay or transgender, and decided today Trump can’t arbitrarily ends the DACA program.
The 6-3 decision on sexual orientation was written by Justice Neil Gorsuch, the successor to conservative icon Justice Antonin Scalia. Senate Leader Mitch McConnell held that seat open for over a year—blocking Barack Obama’s nominee Merrick Garland—to put Gorsuch in that seat. Nice going, Mitch.
Trump, who brags about “my judges” Gorsuch and fellow conservative Brett Kavanaugh when explaining why he should be reelected, actually sounded subdued when he reacted to the decision.
“I’ve read the decision and some people were surprised but they’ve ruled and we live with their decision,” he said. “Very powerful decision.” (America awaits his next twitter storm to learn what he really thinks.)
Trump’s evangelical supporters weren’t so circumspect. Evangelical radio show host Erick Erickson tweeted: “All those evangelicals who sided with Trump in 2016 to protect them from the cultural currents just found their excuse to stay home in 2020 thanks to Trump’s Supreme Court picks.”
The Federalist concluded that conservatives need to “start picking individuals who vote correctly.”
“It’s disappointing to see Justice Gorsuch lead the opinion for the majority,” said Travis Weber, a vice president of the Family Research Council. “We supported him, based on his originalist record.”
Carrie Severino, president of the Judicial Crisis Network, said, “Justice Scalia would be disappointed that his successor has bungled texturalism so badly for the sake of appealing to college campuses and editorial boards.”
That also annoyed the editorial board of The Wall Street Journal, which wrote that Gorsuch’s reasoning “usurps Congress and distorts the texturalist school of jurisprudence that he claims to follow.” In a follow-up editorial, the board suggested Gorsuch may have been possessed by an alien when he wrote the decision. “We’re available for a legal exorcism upon request.”
The decision was based on two cases where men were fired when their employer found out they were gay, and a third case where a man transitioning to female was fired. The question before the court was simple: Are these actions covered by the Civil Rights Act of 1964, which doesn’t mention sexual orientation.
Gorsuch wrote that the law’s prohibition of work place discrimination based on sex should also be read to cover sexual orientation. “An employer who fires an individual merely for being gay or transgender defies the law,” his opinion said.
Kavanaugh, who voted with the minority, went out of his way to show sympathy with the struggles of gays and lesbians. “They have advanced powerful policy arguments and can take pride in today’s result.”
The majority was also joined by Chief Justice John Roberts, touted as a conservative when appointed to the court. Roberts wrote the majority opinion in today’s 5-4 decision that bars Trump from arbitrarily ending the DACA program.
DACA, which stands for Deferred Action for Childhood Arrivals, was an executive order issued by Barack Obama that accorded deferred deportation status to over 700,000 individuals known as “Dreamers,” people who were brought to the U.S. before the age of 16 and are either in school, have graduated, are in the military, or have been honorably discharged.
The court didn’t rule on the legality of DACA, just that the Trump Administration failed to follow the law—where have we heard that before?—in ending the program. Trump didn’t hold back on a key element of immigration program.
“These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts in the face of people that are proud to call themselves Republicans or Conservatives,” Trump tweeted. “…we need NEW JUSTICES of the Supreme Court.”
Given Trump’s track record to-date, that may send chills down the spines of conservatives.