The defection of Justice Neil Gorsuch from the conservative side in the Supreme Court case on transgenderism has clearly delivered a blow to the Federalist Society and the people who have come together in the conservative legal movement. But the decision may also have the benefit of jolting Republicans from their willingness to rely on the courts to do the heavy lifting, to make the arguments that the political branches lacked the nerve or the wit to make.
The Republican Party had its first successful surge with the genius of Abraham Lincoln, leading a national movement to counter, narrow, and finally overturn the holding of the Supreme Court in the Dred Scott case. That case brought a new constitutional right not to be dispossessed of property in a slave when one entered a territory of the United States.
Abraham Lincoln saw that the decision could be extended to the states as well, making slavery national in its legal standing. Lincoln explained how the Republicans of his day could respect the decision in Dred Scott, while still leaving the political branches free to contest and counter that decision.
The logic of that position cannot be dislodged from our Constitution; it has been used in recent years mainly by the Democrats, but it is the precisely the path open to Republicans now if they would resist the vast effects portended in this decision on transgenderism.
Accept the Case Outcome, Reject the Underlying Principle
Lincoln explained that when the Supreme Court decided that Dred Scott would remain a slave, “We do not propose that …we, as a mob, will decide him to be free.” But as Lincoln quickly pointed out, “We nevertheless do oppose that decision as a political rule which shall be binding on the voter, to vote for nobody who thinks it wrong, which shall be binding on the members of Congress or the President to favor no measure that does not actually concur with the principles of that decision.”
The Republicans would accept the outcome in the case for the litigants, but since they refused to accept the principle articulated by the court, they would not be obliged to follow that principle in the business coming before them. So, in a combination of administrative decisions and legislation, Lincoln and his Congress refused to accept the notion that black people in America could not have the standing of “citizens,” as Chief Justice Taney held in Dred Scott.
After the decision, a black student in Boston was denied a passport to study in France on the grounds that blacks could not be citizens and therefore could not travel with an American passport. A black inventor in Boston was denied a patent for the same reason—that since he didn’t have the standing of a citizen, he couldn’t rightly hold a patent under the laws of the United States.
The new Lincoln administration quashed both decisions. And the attorney general, Edward Bates, declared in a memorandum that, in the understanding of the Lincoln Administration, any free black man in the United States would indeed be regarded as a “citizen” of the United States. Beyond that, the Congress was willing also to act to bar slavery from new territories—an act that clearly challenged the holding of the court in Dred Scott.
Democrats Adopted This Tactic; So Should Republicans
In our own day, the Supreme Court in 1983, in a case on immigration, struck down the “legislative veto,” the device that allowed the executive to take the initiative in putting certain policies into place. Congress would have an interval of 90 days or so to undo the move with a “veto.”
As it happened, that device held a high importance for the Democrats as the defining feature in the War Powers Act. That act would acquiesce in the authority of the president to deploy troops abroad and give the Congress 90 days in which to vote their refusal to support the action.
But even though the court declared the legislative veto inconsistent with the separation of powers, Democratic Congresses kept enacting the legislative veto in a stream of legislation. The Democrats left the decision in the Chada case in place, but they were adamant in preserving the principle of the legislative veto in a host of other cases quite apart from immigration.
That is the only path open right now to conservatives. They see so many things in our lives unsettled and wrecked by the notion that there is no objective truth that marks the difference between men and women; that people are simply free to declare a “gender identity” through the brute assertion of their own will—and yet more than that: compel people around them to affirm the truth of that claim at the risk of courting serious penalties for themselves and their employers.
Justice Gorsuch opened a path for the political branches to resist when he pointed out that the Rost family, the plaintiffs in the case, never raised their claim under the Religious Freedom Restoration Act (RFRA). Under that act, the federal government should have used “the least restrictive means” of achieving resisting discrimination against transgender people when it came into conflict with deeply held religious view.
That statute on RFRA, said Gorsuch, “might supersede” the commands of the Civil Rights Act on sexual discrimination. That would be a way out. But it would be a counterfeit claim: the owners of the Harris Funeral homes would have to claim now merely to “believe” conscientiously what stands as an objective truth: that there are inescapable differences in the organization of our bodies that must separate males and females, quite regardless of what gender we might wish to be.
Congress Needs to Get Back In the Game
Nevertheless, that is a beginning. The Supreme Court offered a reading of the Civil Rights Act, and the Congress may aptly come back now to assert, as it has in the past, that the ban on discrimination by “sex” would not threaten the existence of all-female colleges such as Smith and Wellesley. In the same way, Congress could make it clear, as Gorsuch noted, that the decision in the Harris case may not apply to locker rooms or bathrooms or all-female teams.
In this way, the political branches may once again, as of old, start narrowing and challenging the decisions of the Court. Nancy Pelosi and Chuck Schumer are not likely to fall in with this project; but that shouldn’t bar Republicans from raising the issues and drawing the lines in the elections coming up. For ordinary folks, unburdened with a degree in law, that issue may be as clear as anything else in sharply marking the differences between the parties right now.
By this time, of course, Republicans may feel so battered that they may have trouble if recovering the spirit—and the nerve—to raise the argument, even when it plays so clearly in their favor. Still, there are senators who take these issues seriously and have not been afraid to plunge into these so-called “value questions.”
James Lankford and Roy Blunt have chaired the “Values Action Committee” for conservative groups that share these concerns. They have been models of sobriety as well as engagement, quite trusted by their colleagues.
There are others with the spirit and verve to make the move also: the redoubtable Marsha Blackburn, along with those seasoned warriors, Ted Cruz and Mike Lee. My old friend Lindsay Graham is ever willing to throw a grenade, and the ever-ready Josh Hawley could do useful work here if anyone could administer a relaxant.
Using Courts for Democrats’ Dirty Work
For years the Democrats have been “the party of the courts”: They have relied on the courts to put across those parts of the liberal agenda that the liberals have not have the nerve to campaign on openly and put before the voters. In this manner was same-sex marriage “enacted” with the solid help of the Clinton-Obama appointees even after Barack Obama had earnestly professed his unwillingness to endorse that transformation of our laws.
Well, as H.L. Mencken used to say, people ought to get what they want—“good and hard.” The decision on transgender employees has delivered a demoralizing and crippling blow to the president and party that sold Gorsuch as the very confirmation of what they had accomplished in electing Donald Trump. But by raising the issue now on the Hill, Republicans can do a bit of jujitsu or a handoff: They can invite Democrats to come out openly now to the country in defending what their witting and unwitting allies on the court managed to enact.
They may also ignite some tensions among themselves: there has been a rising opposition to transgenderism from liberal women and lesbians. Feminists know that all of the protections enacted for “women” in the law depend on the confidence that we can identify, as a genuine, ontological fact, those creatures marked off in nature as “females.” If the question were opened, it could trigger a brawl among fierce, combative women, which would generate a certain resonance in the country.
None of that would be welcome support for transgender causes right now. In this turnabout, Joe Biden and Co. may be repaid for what they’ve done over the years in trashing Robert Bork and Clarence Thomas, and shaping, in this way, the kinds of candidates that Republicans would dare put up for confirmation. If they’re made finally to a pay a price, some justice may arise from this wreckage after all.