For one thing, the law’s ambiguities provide ample space for even a mind that imagines itself constrained — even Scalia’s mind, in some cases — to argue its way into ruling on behalf of its ideological objectives. Meanwhile politics abhors a power vacuum, and our juristocracy has claimed new powers in part because Congress doesn’t want them, a tendency that originalism is powerless to change.
And the public seems to have accepted this abdication. “The main question in American social life,” the blogger Tanner Greer recently observed, “is not ‘how do we make that happen?’ but ‘how do we get management to take our side?’ ” The Supreme Court, clothed in meritocratic authority, seems more like management than Congress.
All of these tendencies converged in Gorsuch’s decision. The goal of his ruling, civil rights protections for gay and transgender Americans, is widely shared; the problem is that Congress has no desire to negotiate over the uncertain implications — for religious liberty, single-sex institutions, transgender athletes, and more. So Gorsuch (with Roberts’s support) took the burden on himself, discovering the desired protections in the text of the 1964 Civil Rights Act (an act of sophistry, not interpretation) and then suggesting that all the uncertainties would be worked out in future cases — in other words, by Neil Gorsuch, arbiter of sexual and religious liberties alike.
That a textualist philosophy and a Federalist Society pedigree didn’t restrain him from this self-aggrandizement suggests the conservative legal movement needs either a new theory of its purpose, a new personnel strategy, or both.
But outside the right, the welcome afforded Gorsuch’s ruling — which reached the popular outcome, and relieved our legislators of a responsibility they didn’t want — is a telling indication of how our system is understood to work. We may officially have three branches of government, but Americans seem to accept that it’s more like 2.25: A presidency that acts unilaterally whenever possible, a high court that checks the White House and settles culture wars, and a Congress that occasionally bestirs itself to pass a budget.
What sort of Republic this is, and whether we will keep it, is for a higher court than Neil Gorsuch’s to decide.