By appointing Neil Gorsuch and Brett Kavanaugh to the U.S. Supreme Court, Trump aimed to cement conservative policies into law while relishing how he can use his appointment power as leverage against Republicans who question whether they should tolerate the cretin. This week, however, as the Supreme Court achieved a civil rights milestone, Trump lost control of his judicial appointments power game in spectacular fashion.
Gorsuch authored the majority opinion in Bostock v. Clayton County on Monday, siding with liberal Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan as well as Chief Justice John Roberts. Noting that we live in a “society of written laws,” Gorsuch claimed that justices cannot “overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.” As a result, he proclaimed: “An employer who fires an individual merely for being gay or transgender defies the law.”
By contrast, Kavanaugh authored a dissenting opinion, adding another bulleted item to the lengthy “On the Wrong Side of History” section of his resume. In doing so, Kavanaugh nevertheless delivered a different type of surprise. Kavanaugh first made clear that a desire to adhere to what he believes is the ordinary meaning of “discriminate because of sex” in Title VII of the Civil Rights Act of 1964 was his sole motivation. He then offered an unexpected and wholehearted embrace of gay rights.
Kavanaugh called the outcome an “important victory achieved today by gay and lesbian Americans.” He also praised their “extraordinary vision, tenacity, and grit” in the battle for equality, suggesting they “can take pride in today’s result.” In a strange and almost apologetic tone, Kavanaugh signed off by reiterating that his opinion merely reflects his belief that “it was Congress’s role, not this Court’s, to amend Title VII.”
Kavanaugh’s statement is remarkable. In July 2018, days after Kavanaugh’s nomination, the National Center for Transgender Equality wrote that although Kavanaugh is a “reliable arch-conservative to the right of Justices Scalia and Gorsuch… there is a great deal we still don’t know.” The Center also cautioned that “as far as anyone can tell, in his long career he has never ruled on or written about legal issues related to LGBTQ people.”
Gorsuch’s historic opinion and Kavanaugh’s gratuitous declaration of support for the LGBTQ community do not convert these justices into liberal ones nor crown them as civil rights heroes. However, their actions should serve as a one-two punch against Trump, deflating conservative enthusiasm for his unreliable picks while shining a bright light on the fact that Trump managed to bungle this too.
Back in June 2013, Trump tweeted, “Why do we always know how the four liberals are going to rule but have to think about which side the Republican judges will go.” Wise words from a stupid man. In an instant, Trump’s first pick authored a landmark pro-LGBTQ opinion while his second pick came out as a gay rights proponent. Happy Pride Month, Trump!