WASHINGTON —The U.S. Supreme Court opened a blockbuster 2019-2020 term with a docket featuring cases that address abortion restrictions, “LGBT” rights, immigration, gun rights, school vouchers and the death penalty.

The high-profile cases confirm the court’s increasingly central role in deciding hot-button issues that a polarized Congress has struggled to address. And the resolution of these cases by a court with a conservative majority guarantees that its rulings will fuel partisan divisions in the upcoming 2020 presidential election.

Thus far, the most consequential move by the justices is their recent decision to grant review of a controversial Louisiana law that requires abortion providers to have hospital admitting privileges. Two years ago, the court struck down a similar law restricting Texas abortion providers, but the recent appointments of Justices Neil Gorsuch and Brett Kavanaugh have raised pro-lifers’ hopes that the Louisiana law will be upheld in a ruling that will come by late June.

“The justices’ decision to take up the Louisiana case is welcome news,” Gerard Bradley, a professor at the University of Notre Dame Law School, told the Register. “The additions of Justices Gorsuch and Kavanaugh since the court’s last major abortion ruling in 2016, Whole Woman’s Health v. Hellerstedt, is reason to be optimistic about the outcome of this new case.”

Bradley said he expected the justices will “significantly expand states’ general authority to regulate abortion.”

But he cautioned that the decision to review the case should not be seen as “an occasion for the court to reconsider Roe itself.” 


Review of Practices Lauded

Teresa Collett, a professor at the University of St. Thomas Law School, also lauded the justices’ decision to take up the abortion case. Further, she noted that the court had agreed to the state of Louisiana’s request that it review the practice of abortion providers filing suit to overturn laws that restrict their business.

“For decades, we have allowed the abortion industry to challenge restrictions on abortion, claiming they are doing so on behalf of women seeking abortions,” said Collett. “But we would never allow the tobacco industry to say they represented the interests of smokers.”

The hoped-for outcome regarding this secondary matter, she said, is that legal challenges to abortion law must come from “women directly affected by the regulation, which is the rule in almost any other area.”

The justices’ decision on this abortion case, coming just months before the 2020 presidential election, will thrust the court back into the culture wars, further damaging its legitimacy as a neutral arbiter of the rule of law in a system of limited government.

Indeed, the ideological divisions that have produced split decisions in a slew of controversial Supreme Court rulings were again on display this month, as the justices took part in oral arguments in a trio of cases that will decide whether federal employment protections that now bar discrimination based on “sex” should encompass workers who identify as “gay” or “transgender.”

On Oct. 8, during back-to-back oral arguments for Bostock v. Clayton County, a consolidated case, and for R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, that examined the intentions of Congress when it approved Title VII of the Civil Rights Act of 1964, Justice Samuel Alito expressed his belief that any significant amendment to the law should be taken up by U.S. lawmakers, not nine unelected men and women in black robes.

Deciding that “Title VII should prohibit discrimination on the basis of sexual orientation is a big policy issue and a different policy issue than the one that Congress thought it was addressing in 1964,” said Alito.


‘Acting Like a Legislature’

The justice further noted that Congress “has declined” to pass the Equality Act, proposed legislation that would provide such protections based on sexual orientation. And if the court now “interprets this 1964 statute to prohibit discrimination based on sexual orientation, we will be acting exactly like a legislature.”

Gorsuch expressed additional misgivings, but also considerable sympathy for the plaintiffs.

“Nobody is questioning … the legitimacy of the claims” by the employees, said Gorsuch. But shouldn’t the justices “take into consideration the massive social upheaval that would be entailed in such a decision”?

And shouldn’t the justices also consider whether an expansive interpretation of Title VII protections goes beyond their constitutional role, by performing a “legislative [rather] than a judicial function?” he asked. “It is a question of judicial modesty.”

Justice Sonia Sotomayor was also sympathetic to the employees’ arguments, but took a very different view of the court’s responsibility to address their plight and the intent of Congress when it passed the law.

“We can’t deny that homosexuals are being fired merely for being who they are,” she said.

“At what point does a court say, ‘Congress spoke about this?’” she said, in a reference to Title VII’s language, as “it’s very clear that what’s happening fits those words.”

Addressing the case brought by the employee, a biological male who identifies as a woman, Chief Justice John Roberts grappled with the complex issue of applying the statutory language, which did not dispute a view of human biology as immutable, to a modern context where cultural norms separate biological sex from “gender identity.”

At one time, discrimination based on sex appeared more clear cut, but today, he suggested, plaintiffs who identify as transgender have challenged employment policies they view as discriminatory, including the requirement that they  use facilities corresponding to their biological sex. Will that mean employers must establish two sets of procedures to be in compliance with Title VII? he appeared to be asking.

“If we analyze the bathroom case purely on the basis of biological sex, maybe you have one answer,” said Roberts. “But if you analyze it in terms of transgender status, you have a different answer, because men and women who identify with their biological sex aren’t disadvantaged whether they are using the men’s room. But the issue is quite different if you are dealing with a transgender individual who wants to use the restroom of their gender identity, contrary to their biological sex.”

David Cole, the legal director for the American Civil Liberties Union who represented the employee — a male funeral director who had been fired by his employer after announcing his intention to live as a woman — sought to dismiss the justices’ concerns. Cole argued that appellate courts had already interpreted the statutory language more broadly, and transgender employees had been using the bathroom that corresponded to their gender identity without incident.

Notre Dame’s Bradley said the outcome of the Title VII cases was hard to predict.   


Gorsuch’s Essential Vote

“Justice Gorsuch seemed genuinely stumped by the plaintiffs’ arguments that the law against employment discrimination on the grounds of ‘sex’ includes transgender status and sexual orientation, notwithstanding that almost nothing could have been further from the mind of the Congress which passed the civil-rights law in 1965,” said Bradley.

Gorsuch’s vote “would be essential to any majority which ruled against the ‘trans’ and ‘gay’ plaintiffs.” 

That said, Bradley was optimistic that the new justice “will cut his way through the fog of rhetoric thrown up by the plaintiffs and reach the right result, thus leaving the deciding vote in the hands of Brett Kavanaugh.”

At the same time, Collett expressed frustration with legal arguments that dismissed concerns about the social upheaval that would accompany new protections for LGBT employees.

Collett took particular note of the already far-reaching political, legal and social impact of the transgender-rights movement. She contended that a change in the legal system’s interpretation of Title VII “will have a decisive impact on the educational system,” where students are subject to new progressive theories and practices regarding sexuality and gender fluidity, sparking protests from parents.

“Removing this issue from a robust political debate,” she said, “is both unhealthy and unhelpful.”

The U.S. bishops echoed these objections in a statement released on the day the justices took up the cases.

“Words matter; and ‘sex’ should not be redefined to include sexual inclinations or conduct, nor to promulgate the view that sexual identity is solely a social construct rather than a natural or biological fact,” read a joint statement signed by the  U.S. bishops’ point men on religious liberty, domestic justice and the promotion and defense of marriage.

“Redefining ‘sex’ in law would not only be an interpretive leap away from the language and intent of Title VII, it would attempt to redefine a fundamental element of humanity that is the basis of the family and would threaten religious liberty.”

That warning gained new relevance as nine Democratic presidential contenders gathered on Oct. 10 for a CNN and Human Rights Campaign-sponsored “Equality Town Hall” that showcased their party’s commitment to “LGBTQ” rights. The party’s frontrunner, Sen. Elizabeth Warren of Massachusetts, vowed to end “overly broad religious exemptions to nondiscrimination.”

And when a moderator asked if faith-based institutions that opposed same-sex unions should lose their tax-exempt status, Beto O’Rourke quickly endorsed the idea, prompting cheers from the audience.

The following week, U.S. Attorney General William Barr put the heated rhetoric into broader context, as he delivered a wide-ranging address at Notre Dame on the divisive impact of secularism and newly identified sexual rights.

“The secular project has itself become a religion, pursued with religious fervor,” the attorney general said. “Those who defy the creed risk a figurative burning at the stake — social, educational and professional ostracism and exclusion waged through lawsuits and savage social-media campaigns.”
Americans who agree with Barr’s assessment will likely point to the relentless attacks on Kavanaugh’s reputation, during and after his 2018 Senate confirmation hearings, as the most disturbing example of these aggressive tactics.

But the campaign against Kavanaugh also provides further evidence of the high court’s decisive role in resolving policy matters that had once been reserved for Congress.

“The judiciary has unfortunately become a political branch,” Brad Lewis, a political philosopher at The Catholic University of America, told the Register.

Lewis tartly observed that the public follows “the release of opinions at the end of the term on the edge of their seats, and judicial confirmations are now huge political events.” 

But the bigger problem, he said, is that the “reasoning in these decisions is often not really legal reasoning, but policy judgments dressed up — often not very convincingly — as legal reasoning. Empirical judgments and moral judgments that judges are not particularly well-qualified to make are served up in such a way as to degrade the prestige and authority of the courts and the rule of law.”

The “judicial modesty” Gorsuch spoke of in the oral arguments for the LGBT cases suggests that at least some of the justices are aware of the problem and seek to apply the Founders’ original intent to constitutional questions and interpret the scope of statutes based on their precise language.

For now, however, as the Democrats assail the appointment of conservative justices who threaten unrestricted abortion rights, and President Donald Trump promises more of the same, the court retains its role as the arbiter of America’s culture wars.

No doubt, the 2020 election season will feature urgent calls for judicial restraint, but these pleas may come from an unexpected quarter: progressive lawmakers and activists determined to check the court’s new conservative majority before it has Roe in its crosshairs.

Joan Frawley Desmond is a Register senior editor.