He’s Scared of Trump’s Base

As a frequent critic of the Supreme Court’s conservative majority and a long-standing activist for transgender rights, I am probably one of the few members of my community who feels grateful for Justice Neil Gorsuch’s acknowledgement that he fears extending employment non-discrimination protections to transgender Americans would unleash “massive social upheaval.” I found Justice Gorsuch’s remark — which many have interpreted as an indication that the Court may decline to protect transgender workers — to be refreshing for its honesty and transparency. If Gorsuch votes against extending protections, he acknowledged candidly, he would do so not on the basis of law, fairness, or judicial philosophy, but because of his assessment of public opinion, something Supreme Court justices rarely concede they take into consideration.

Integrity is obviously a crucial attribute of any judge, but has been sorely lacking in recent years among members of the Court’s conservative majority. To take an example I know well, earlier this year, a slim 5-4 majority accepted the Trump administration’s false assertion that allowing transgender troops to serve posed a “risk to military effectiveness and lethality,” thus allowing the president to reinstate the military’s transgender ban. But all service chiefs had testified that inclusive policy was a success, and the administration’s claim about risk was based on medical arguments that the American Medical Association and former Military Surgeons General and U.S. Surgeons General had repudiated.

When a court’s rulings depend on the elision of fact, civil rights and even democracy itself can suffer, and the transgender military ruling, unfortunately, is far from exceptional. Critics have suggested that the Court’s most important decisions in recent years, including dismantling the Voting Rights Act and upholding the travel ban, have ignored key facts in service of partisan ends.

Given the conservative majority’s arguably vexed relationship with evidence, Justice Gorsuch’s integrity is admirable. But if his acknowledgment is refreshing for its candor, it is troubling at the same time, as the premise of his revelation — that a ruling extending protections would promote upheaval — has no basis in fact. Numerous polls confirm that the American public overwhelmingly supports extending non-discrimination protections to transgender employees. As a political science professor and LGBT advocate, I am unaware of any massive social upheaval in the 21 states whose laws explicitly protect transgender individuals, even though each of those states includes significant numbers of Republicans and social conservatives. Gorsuch may have been honest about his fears, and he is certainly entitled to his imagination. But his concerns have no basis in reality.

What likely worries Justice Gorsuch is that some conservatives believe that treating transgender employees equally violates their religious convictions. Setting aside that many evangelical Christians support employment non-discrimination for LGBT Americans, civil rights protected by laws and by the Constitution should not depend on the public’s comfort. Brown v. Board of Education, the 1954 ruling prohibiting states from establishing racial discrimination in public schools, led to social unrest. But it was unquestionably correctly decided. By revealing his concerns about social upheaval, Justice Gorsuch has given up the ghost on the conservative majority’s true partisan priority, whether the Court thinks the GOP’s base will like a decision. That is dangerous partisanship that has no place on the bench.

Regardless of one’s partisan commitments, it is ethically unacceptable to prioritize the religious injury that some employers might believe themselves to suffer if forced to treat transgender workers equally with the tangible injury that transgender employees suffer when they are denied employment on the basis of their gender identity. Some employers surely believe that they compromise their religious convictions when they are forced to treat women, racial minorities, and Muslims equally, but catering to such beliefs would be immoral. Whether one interprets religious objections to treating transgender employees equally as unreasonable animus or reasonable religious belief, there is no comparison between such objections and the consequences of being fired. That Gorsuch and his conservative colleagues on the bench would entertain the comparison is, at best, problematic.

Justice Gorsuch’s concern is even at odds with his judicial philosophy. Gorsuch professes a commitment to “textualism,” a doctrine that insists that jurists hew closely to a law’s text instead of its authors’ intent or its contemporary impact, and that explicitly disavows any concern for public opinion. He emphasizes his disregard for popular reactions when he explains textualist philosophy to new law clerks: “Rule number one,” he tells incoming cohorts, “Don’t make it up — follow the law. Rule number two: when everybody else around you is yelling at you, asking you to make it up and condemning you for not making it up, refer to rule number one.” As Slate’s Mark Stern observes and as Gorsuch himself seems to agree, “there is no ‘massive social upheaval’ exception to textualism.”

The influential queer theorist, Eve Sedgwick, had an insightful reading of Justice Byron White’s opinion in Bowers v. Hardwick—the now-overturned 1986 case that allowed states to criminalize same-sex sex: She demonstrated that White’s ruling against gays and lesbians depended on a refusal to recognize hard facts, a maneuver she labeled as “willful ignorance.” According to Sedgwick, White’s sidestepping of evidence he did not like was a “contemptuous demonstration that powerful people don’t have to be acute or right.”

Gorsuch’s stated concern about “massive social upheaval” smacks of the same conceit. As conservative jurists twist facts to sustain partisan rulings that injure everyday Americans, progressives are becoming increasingly vocal about the possible need for judicial reform. Hopefully, Justice Gorsuch and his colleagues will heed such warnings before driving the Court and the democracy itself off a cliff.

Aaron Belkin is director of the Palm Center and professor of political science at San Francisco State University.


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