On Tuesday, a Supreme Court majority ruled in Bostock v. Clayton County that Title VII of the 1964 Civil Rights Act, written to protect against discrimination on the basis of sex, also protects against discrimination on the basis of sexual orientation and gender identity. That Trump-nominated Justice Neil Gorsuch wrote the majority opinion (joined also by Bush-nominated Chief Justice John Roberts) helped to occasion on some quarters of the right a bout of despair and fatalism more redolent of eras when Republican-nominated justices did not ostensibly control the Court. The dolor doubled Thursday, when a Roberts-led 5–4 majority in DHS v. Regents of the University of California rejected the Trump administration’s ending of the Obama administration’s Deferred Action for Childhood Arrivals (DACA) policy, essentially a legislative act of executive protection for an otherwise unauthorized group of resident aliens.
One person not sharing in the grief, at least concerning the first decision, was Iowa Republican senator Chuck Grassley. “It’s the law of the land,” Grassley said about Bostock. “And it probably makes uniform what a lot of states have already done. And probably negates Congress’s necessity for acting.” A member of the legislative branch — what is theoretically the most powerful branch of government — expressing relief for not having to legislate is a far cry from the design of the Constitution. The Federalist Papers, written before the Constitution’s ratification to advocate its adoption, justify the document’s proposed separation of powers as a means to keep one branch from growing more powerful than any other, thus precluding tyranny. “Ambition must be made to counteract ambition,” Federalist No. 51 reads. “The interest of the man must be connected with the constitutional rights of the place.” Yet Congress today is ambition-deficient.
One of the few ambitions of Republicans in Congress during Trump’s presidency has been to confirm judges. This is partly a reactive measure, responding to the Left’s transformation of the judiciary into a legislative body (one that often legislates in its direction), as most notoriously embodied in Roe v. Wade. It’s partly a product of circumstance: namely, the fact that the legal wing of the conservative movement, especially as represented by the Federalist Society, seems uniquely competent at finding, training, and placing its chosen people, especially compared with other factions on the right. And it’s partly a consequence of Congress’s own defects: the aforementioned unwillingness to legislate, gridlock, etc. The elevation of the Supreme Court and the decline of Congress as a serious lawmaking body have combined to make Congress’s main purpose, for Republicans, to fill the federal judiciary. A not-inconsiderable number of nose-holding votes for Trump in 2016 came from Republicans hoping to replace the late Justice Antonin Scalia on the Supreme Court; a considerable amount of Trump defense continues to come from efforts in which his administration has since participated to shape the judiciary.
All of this has led Republicans to accept a greater emphasis on the courts, especially the Supreme Court, as a means to resolve what might once have been political questions. Senators promise to appoint conservative justices; voters dutifully support them as essentially a rubber stamp for judicial appointments and little else. But when Republicans put greater emphasis on the courts, it makes the sting all the more painful when they do not deliver sought-after outcomes (even if failures sometimes get more fanfare than successes). This is the connection between Grassley’s relief and voter anger: Senators are relieved to be relieved of difficult legislation; those who elect them are angry that the people to whom Congress has passed the buck of legislating are not acting rightly.
This is an unsustainable position. And it is, to be fair, not one entirely of the Right’s creation. The transformation of the Supreme Court, and of the courts more generally, originated primarily as a phenomenon of the Left, an attempt to re-engineer the Constitution without having to bother with votes. But the degree to which those on the right have acquiesced merely to working within this framework is beginning to approach complicity in it. It is one thing to demand conservative judges; it is different to make this demand while absolving Congress of its responsibility to legislate for itself. Just because the Federalist Society is a confident and capable organization doesn’t mean that those on the right should give up on expecting Congress to do the rest of its job. To do so is to surrender, in a sense, to the notion that political questions are best resolved judicially, and to further rule by lawyers (though to be fair, Congress has plenty of those, too). This has helped create our current situation, one whose remove from consent and other legitimating pathways seriously threatens our political stability. However one feels about the recent decisions, they properly belong in Congress, not the Supreme Court.
But ours is a difficult situation to change. The deck is stacked considerably against Congress, legally, politically, and culturally. Its members are given to grandstanding, consumed by gridlock, and unused to the process of give-and-take that actually produces legislation. The Supreme Court, meanwhile, must deal only with nine members and increasingly takes on an august stature that many of its members have done little, in the past 100 years or so, to restrain, and in fact tend to abet. Voters themselves elect congresses that seem hopelessly at odds, and then abide by their failure to legislate. And a focus on the courts is understandable, given their considerable power; concern for them remains justified. But the degree and extent of congressional dereliction surpass explanation by merely these factors. Much of it is self-willed, though some members see the problem. Perhaps if conservative voters expected more of those they elected than merely to confirm judges to do Congress’s work for it, then members of Congress would rise to the occasion. The alternative is more inaction, a further warping of our constitutional order . . . and more whining.