“Put not your trust in princes, in a son of man, in whom there is no salvation.” —Psalm 146:3
In 2016, many Christians that I know and respect wrestled mightily with the moral quandary of voting for Donald Trump. One of the primary reasons many of them did end up voting for him is that he had promised to appoint conservative judges that would stand against abortion and prevent the liberal cultural agenda from reigning supreme. I vividly remember, in the weeks prior to the election, hearing some of my Christian friends breathlessly proclaim that we are right on the verge of overturning Roe vs. Wade—if only we elect Donald Trump!
On that empty seat of the Supreme Court, created by the sudden death of Justice Antonin Scalia in early 2016, sat all of Christian conservatives’ deepest hopes and greatest fears for the country.
Perhaps now, after the Supreme Court’s recent decision banning workplace discrimination against gays and transgendered people, Christian conservatives will begin to rethink the level of trust they have placed in judges. In my humble opinion, they should. Let me explain why.
In the case of Bostock vs. Clayton County, Georgia, the Supreme Court ruled 6-3 that LGBT individuals are protected under Title VII of the Civil Rights Act of 1964, which prevents employers from discriminating against employees based on race, national origin, religion, and … sex. This last word proved crucial in the court’s determination.
Neil Gorsuch, Trump’s first appointee to the high court, who sided with Chief Justice John Roberts along with the court’s four Democrat-appointed justices, wrote the majority opinion. Gorsuch is an avowed originalist (the position that the original intent of an author should be adhered to in interpreting the work) and textualist (the view that the literal meaning of the words should determine interpretation of the document). Sometimes there is tension between the two views, as is evidenced by the differing opinions of the Court’s originalists/textualists.
Though he admits that the original authors of the 1964 Civil Rights Act did not have LGBT individuals in mind when they wrote the word “sex,” Gorsuch argues that it is impossible to discriminate against an LGBT person without doing so—indirectly—on the basis of their sex. “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Gorsuch writes in the majority opinion. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” Gorsuch’s argument is essentially a textualist one, even if one disagrees with it.
Samuel Alito, a George W. Bush appointee, wrote the dissenting opinion, shared by Brett Kavanaugh and Clarence Thomas. He argued that the majority’s interpretation of the law falls outside the original intent of its framers and thus that it should not be adopted. Rather, it is the duty of the Court to interpret laws to “mean what they conveyed to reasonable people at the time they were written.” This is essentially an originalist argument.
Social conservatives immediately decried the Court’s ruling as “devastating” and said that it “eviscerates” religious liberty. But not so fast, says Daniel Bennett in Christianity Today. Bennett cites Gorsuch’s own opinion, which makes clear that more religious liberty cases are expected and that Gorsuch maintains his support for religious liberty. “We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution,” writes Gorsuch, who once defended a Christian baker’s right not to bake a cake for a gay wedding. Another upcoming case, which could expand the qualifications for which employees can be considered “ministers” and thus exempt from anti-discrimination laws, should receive a ruling this year.
In any case, whether one sides with Gorsuch or Alito in this particular case, it should serve as a lesson for Christian conservatives, who often cite the Supreme Court as one of their highest priorities. The reasoning is given that we must vote for Donald Trump and seek to maintain political power in order to get judges on the courts that will enact our moral vision for the country. But such trust in judges is misplaced, for at least two reasons.
First, even Republican-appointed judges often don’t rule the way social conservatives want them to. The Bostock case is not the first one in recent history in which purportedly conservative judges (in this case, Gorsuch and Roberts) made a ruling that didn’t fit with ideological conservatism. In February 2019, the Court blocked a Louisiana law that would place strict regulations on abortion providers. In May 2019, the Court refused to consider Indiana’s attempt to ban abortions carried out for certain reasons such as fetal disability. In June 2019, the Court declined to dispute the ruling of a lower court striking down an Alabama law banning a certain type of abortion common during the second trimester. Clarence Thomas agreed with the Court’s decision, though he made clear that he is personally in favor of such a ban. In December 2019, the Court yet again declined to hear a case that could have limited abortion.
In the oral arguments of a March, 2020 case before the Supreme Court, the justices seemed split on a Louisiana law requiring abortion doctors to have admitting privileges at a local hospital. If this law is allowed to stand, far fewer doctors will be able to provide abortions in the state. Regardless how the Court rules in this case, the precedent of Roe will still stand.
And none of the above is to even mention the landmark 2015 Obergefell vs. Hodges case, which granted gay couples the right to marry in all fifty states. Who was the swing vote in that case? Justice Anthony Kennedy, an appointee of President Reagan who also voted with the liberal judges in 1992’s Planned Parenthood vs. Casey and 2008’s Boumediene vs. Bush (granting rights to Guantanamo Bay detainees).
The point here is that judges are human beings who can and sometimes do undergo evolution in their thinking. Appointing judges for life grants these appointees the freedom to experience such an evolution, and some portion of them do.
Second, the more emphasis Christians place on judges bringing about certain outcomes, by necessity, the less emphasis is placed on the judges’ judicial philosophy. Social conservatives often criticize liberals for being “outcome-oriented” when it comes to the courts, while claiming to support originalism and/or textualism as judicial philosophies to which judges should adhere. But they also want judges who will achieve certain outcomes like overturning Roe vs. Wade. They fail to realize that, in some cases, these two priorities will be contradictory.
Regardless of whether the Roe ruling should have come out the way it did, it is now written and settled law. Planned Parenthood vs. Casey in 1992 further solidified and clarified it as law. In order to abide by originalism and textualism, judges would be required to uphold the Roe decision. So, Christians must decide if they want judges that abide by originalism or textualism, or if they want to overturn Roe. Do they want to abide by the letter and spirit of the written law, or do they want judicial activism (the same thing they criticize about liberals)? They can’t have it both ways.
It is impossible to vet and appoint only judges that will be originalist on every matter except those on which social conservatives would like them to be activist. And even if it were possible to do so, such judges—willing to bend their judicial philosophy for the sake of their personal political views—would not be the kind that any reasonable person would want on the highest court of the land. Besides, if social conservatives are doing it, would this not give even more cover to social liberals to do the same when it is their turn to hold the reigns of political power?
Put not your trust in judges, my fellow believers. They cannot save us. As Daniel Bennett concludes in his CT piece, “our engagement must be paired with hope—not a naive hope in a flawed and fallen political and legal system, but hope in him who has overcome the world.”