President Trump celebrated the confirmation of his 200th federal judge this month, a significant milestone in his reshaping of the judiciary in less than four years. But it wasn’t all a party. “Do you get the impression that the Supreme Court doesn’t like me?” Trump asked on Twitter less than a week earlier.
The source of this discordant note was a pair of Supreme Court rulings in which GOP appointees sided with the liberal bloc to deliver outcomes that were potentially demoralizing to portions of Trump’s base in the middle of a tough election year. A big part of the case for Trump’s reelection rests on the conservative judges he has worked with Senate Majority Leader Mitch McConnell to install throughout the federal court system. The conservative majority on the highest court seems more fragile and less reliable than previously thought, leading a few prominent Republicans to question the whole project.
Bostock v. Clayton County was likely the more important of the two. In the case, the majority found that Title VII of the Civil Rights Act of 1964 banned discrimination against gay and transgender workers through its broad prohibition against discriminating based on sex. Justice Neil Gorsuch, Antonin Scalia’s successor and Trump’s first Supreme Court nominee, wrote the opinion.
“Justice Scalia would be disappointed that his successor has bungled textualism so badly today for the sake of appealing to college campuses and editorial boards,” protested Carrie Severino, president of the conservative Judicial Crisis Network. “You can’t redefine the meaning of words themselves and still be doing textualism. This is an ominous sign for anyone concerned about the future of representative democracy.”
“The Supreme Court unilaterally ‘updated’ the 1964 statute in a manner that legislature clearly did not intend at the time they wrote the term ‘sex’ based on the court’s policy preferences, which is an unconstitutional violation of the separation of powers,” said Jenna Ellis, a senior adviser to Trump’s reelection campaign on legal matters.
According to most public opinion polls, the general nondiscrimination policy that Bostock v. Clayton County resulted in is popular, including among Republicans. But social conservatives worried about its impact on religious liberty, especially the hiring practices of religious schools, hospitals, and social services agencies. The decision did not attempt to resolve these tensions, but some fear that Christian adoption agencies and academies will face a litigation nightmare.
Sen. Josh Hawley, a Missouri Republican, went a step further than that. “It represents the end of the conservative legal movement, or the conservative legal project, as we know it,” he said on the Senate floor, adding, “If we’ve been fighting for originalism and textualism, and this is the result of that, then I have to say it turns out we haven’t been fighting for very much. Or maybe we’ve been fighting for quite a lot, but it’s been exactly the opposite of what we thought we were fighting for.”
The second decision concerned Deferred Action for Childhood Arrivals, an Obama-era initiative for shielding some young undocumented immigrants from deportation that Trump considered illegal executive overreach and vowed to end. DACA also polls well but is opposed by many immigration hawks who support the president. The Supreme Court rebuffed Trump’s cancellation of the program on procedural grounds, with Chief Justice John Roberts joining the liberal bloc.
Republican-appointed justices have disappointed conservatives before, upholding abortion and affirmative action or ruling that there is a constitutional right to same-sex marriage. John Paul Stevens and David Souter became full-time members of the court’s liberal bloc. But Gorsuch and Roberts were vetted and vouched for by the best conservative legal minds, leading to Hawley’s consternation. Trump can ill afford diminished enthusiasm from any part of his base, and “but Gorsuch” was the rallying cry of conservatives who voted for Trump despite misgivings about his tweets and temperament.
Most conservatives nevertheless reaffirmed the importance of a Republican president picking judges. “Gorsuch has been the most conservative justice,” said Timothy Head, executive director of the Faith and Freedom Coalition. “His rulings in the first year plus have run basically in tandem with Thomas and Alito.”
“President Trump, working closely with Senate Majority Leader Mitch McConnell, has successfully, positively reshaped the Federal Judiciary,” March for Life Action President Tom McClusky said in a statement. “The judges nominated by President Trump are committed to upholding the rule of law and the Constitution. Already, we have seen positive developments in cases involving women and the unborn.”
Vice President Mike Pence has embarked on a “Faith in America” tour to help shore up the evangelical and conservative Catholic vote.
