This week’s Supreme Court ruling in Bostock v. Clayton County is being rightly applauded, as it expands legal protections against employment discrimination to LGBTQ people. The majority opinion — written by hard-right Trump pick Neil Gorsuch, who joined the court’s dwindling group of liberals to deliver the 6-3 ruling — has predictably enraged the Right, who accused Gorsuch of being a traitor, a fraud, and a secret liberal whose ruling shows Trump has failed to arrest the supposed ascendance of liberalism in US politics.
Mercifully, the reaction from the liberal side of things has so far largely avoided the depressing tendency to use this single, exceptional case to cast Gorsuch as “one of the good conservatives.” Even supporters of the ruling have cautioned that it doesn’t mean Gorsuch is or will act like an ally. Still, some of the responses from the liberal center — from the New York Times citing Gorsuch’s personal tolerance for homosexuality in claiming that he led the way in the decision to CNN’s exultation that it “puts Gorsuch in the history books” to the laudatory responses from some clueless Twitter personalities — shows the potential is there.
Left unchecked, it’s not hard to imagine well-meaning people years from now flattening Gorsuch’s judicial record into this one case to turn him into a symbol of judicial moderation on a hard-right court. This is, after all, exactly what happened with Gorsuch’s mentor, Anthony Kennedy, the “swing justice” whose actual legacy was a sweeping conservative rollback of hard-won civil rights protections.
So we should remember to ask a very basic question about Gorsuch’s tenure: what else has he actually done on the bench?
It took only a few months for him to pay dividends on the millions of dollars invested in his confirmation by right-wing groups. In that time, Gorsuch sided with the court’s most right-wing justices on (unsuccessfully) protecting an Arkansas law barring same-sex couples from having both of their names on a birth certificate, voted (unsuccessfully) to hear challenges to firearm restrictions and banning “soft money,” and tried to (unsuccessfully) put Trump’s Muslim ban into effect immediately and without restrictions, while it wound its way through the courts. A year later, Gorsuch — together with the “moderate” Kennedy — would be part of the slim, party-line majority that definitively upheld the racist measure, making a mockery of the idea of textualism.
By the time the Supreme Court adjourned for the summer in July 2017, Gorsuch had sided with Clarence Thomas — not just the most conservative member of the current court but one of the most conservative in its entire history — on every one of the fifteen cases he had heard, and even signed on to every one of Thomas’s concurring opinions.
More of the same followed in 2018, when Gorsuch and the rest of the court’s right wing barred federal courts from weighing in on partisan gerrymandering, ruled against a California law requiring antiabortion crisis pregnancy centers to tell patients about state-funded abortions, and effectively imposed “right-to-work” on public-sector unions, overturning four decades of precedent in the process — something Gorsuch has a habit of doing. He also took aim at constitutional protections for criminal defendants, including the right to a state-appointed lawyer if they can’t afford one, and the right of prisoners condemned to death to receive spiritual advisors from their own faith.
Then there was his high-profile dissent in the obscure Gundy v. United States case. Why did libertarians celebrate an opinion about whether the attorney general could force a sexual offender to register even if he’d committed his crime before the registry law existed? Because Gorsuch used the occasion to take aim at the “intelligible principle,” also known as the entire legal basis of the modern administrative state, giving government agencies wide latitude to shape policy through the authority delegated to them by Congress, like the various rules issued by the Environmental Protection Agency. As one libertarian activist described it, this principle is viewed by the Right as a “political narcotic” that was “hooking Congress on more and bigger regulatory schemes with scant regard for their costs, little concern over the political repercussions, and most of all disrespect for a Constitution designed to prohibit what Congress has eagerly promoted.”
Translation: get rid of this, and we can finally shrink the powers of the federal government back to their size and scope in the dark days before the New Deal. Gorsuch’s dissent only signaled his intention to overturn this principle, but with Brett Kavanaugh’s addition to the court creating a solid right-wing majority, it’s a jurisprudential “Chekhov’s gun” aimed squarely at the concept of an activist federal government.
And as commendable and important as this most recent ruling was, no one should think of Gorsuch as an ally to LGBTQ rights.
Besides his stance on the Arkansas birth certificate law, Gorsuch voted with the majority that let Trump’s transgender military ban go into effect, and sided with the majority that the Colorado Civil Rights Commission’s ruling against a bakery that refused to make a wedding cake for a same-sex couple was, in fact, a violation of the homophobic baker’s religious freedom. As commentators have noted, the court is now set to hear a case that could widen the ability for those bigoted toward LGBTQ people to discriminate against them on religious grounds — something that, based on the history of both Gorsuch and the rest of the court’s hard-right majority, it looks likely to do.
In other words, as legal scholar Erwin Chemerinsky said about Gorsuch in 2019: “Overall, he is as conservative as those on the right had hoped, and those on the left had feared.”
On the one hand, this makes the right-wing meltdown over the Bostock decision especially comical, given that Gorsuch has consistently given the broad Republican coalition — social conservatives, libertarians, business owners, and the rich — exactly what it wanted in each of their areas of interest. Then again, the movement Right’s bottomless capacity for outrage and willingness to flame its political leaders might well be part of the reason why the GOP is so well-disciplined by and responsive to its base.
The episode also illustrates, yet again, how fringe and extreme the GOP’s activist base actually is. Conservatives often cast themselves as speaking for a silent majority fed up with the “cultural radicalism” of Democrats like Obama. Yet a poll late last year found Americans were overwhelmingly in favor of the decision Gorsuch and the court ultimately delivered this week, even when the question was phrased in a way favorable to the conservative argument. With public opinion shifting more and more in the direction of social liberalism and tolerance, it’s becoming increasingly obvious who the actual “cultural radicals” are.
The Right has a habit of going so apoplectic, they can mislead liberals into misreading enemies as heroes. Their vitriolic and often racist attacks on Obama led many to close ranks around the former president, even as he embraced hard-right policy on everything from the “war on terror” and immigration to fossil fuels and entitlements. Don’t fall for it. If the hagiographies of Gorsuch eventually come, one decision shouldn’t overshadow his entire record.