The Wednesday Wall Street Journal takes Supreme Court Justice Neil Gorsuch to task, and deservedly so, for his incredibly living-constitution opinion in Bostock v. Clayton County. In the jaw-dropping opinion Gorsuch wrote, one which could have been dictated by any one of the liberal justices, Gorsuch completely abandons his originalist philosophy, which holds that laws mean what the words of the law meant to those who wrote them. The new covenant according to Neil is that laws mean whatever spin those promoting the leftist agenda wish to put on them.
For the purposes of discrimination, whatever this word even means anymore in the current political hothouse, sex now doesn’t mean the sex that any individual Americano happens to be, which the authors of the Civil Rights Act of 1964 clearly meant, but whatever delusions, phantasms, appetites, or inclinations one might have in any way directly or tangentially related to the general subject of sex. This is not a plea for discrimination against any sexual category. But if the public demands protection for gays, trans, or any other category, legislators can write laws creating that protection in language that is clear and unchanging in its meaning. Bad enough we have a living constitution. We don’t need living laws, subject to rereading at the whims of federal judges, egged on by advocates of the latest agendas. We don’t need judges sitting atop the fad chain.
We seem to have already lost Chief Justice John Roberts, who on arrival in Washington quickly contracted a case of swamp fewer. (No examples needed for informed American Spectator readers.) You’ll recall he’s the author of the incredible statement that “We do not have Obama judges or Trump judges.… What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Words fail. As judges become more and more political, expanding their reach into decisions they were never meant to make, and almost always along ideological lines, Roberts gave us this saccharin whopper, which makes Pollyanna sound like Machiavelli by comparison. We can pray Gorsuch’s recent infarct is just a tic, an eccentricity, a moment of madness, and that he will come to his coherent, originalist self again. We don’t need two “conservative” Pollyannas on the court. But if the change is permanent, and if the movie industry decides to remake The Sound of Music, Roberts and Gorsuch may have to flip a coin to see which one of them gets to play Maria.