When Conservative Supreme Justices Revolt

CNN has been carrying pieces looking at the the just finished term of the U.S. Supreme Court and the manner in which two justices, Gorsuch and Roberts delivered decisions that will prove to be on the right side of morality and history but which caused apoplexy among Christofascists and others in the far right. Gorsuch's majority opinion in Bostock v. Clayton County which extended non-discrimination protectons to the LGBT community is perhaps the best example.  A piece in The Atlantic looks further into the failure of conservative justices to rule as demanded by Der Trumpenfurhrer and those demanding special rights for far right Christians.   While defeats at the Court may not lessen evangelical ardor for Trump on a wide scale - further proof of their moral bankruptcy - the just ended term must have a few believing they were betrayed by Trump's appointees.  Here are article excerpts:

Until two months ago, Leonard Leo was among the unambiguous winners of the Trump era. The bookish lawyer and architect of the conservative legal movement has spent the past three and a half years executing his decades-long vision of remaking the federal judiciary—he was instrumental in the Supreme Court appointments of Brett Kavanaugh and Neil Gorsuch. But during the Court’s term this summer, an old conservative nightmare recurred: Republican-appointed justices, including Gorsuch, aligned with their liberal colleagues on big, consequential decisions about immigration, abortion, and LGBTQ protections.

In recent decades, conservative justices have consistently moved to the left once reaching the bench: Anthony Kennedy, who was nominated by Ronald Reagan, routinely cast the deciding vote against social conservatives on gay rights. Conservative-movement stalwarts have never forgiven David Souter, the George H. W. Bush appointee, for voting to uphold the constitutional right to abortion in the 1992 decision Planned Parenthood v. Casey, or for siding with his liberal colleagues in the battle over the 2000 presidential election, Bush v. Gore. Leo spent his career building a conservative legal machine in Washington that would forestall this kind of leftward drift among Supreme Court justices. But this summer, the machine began to sputter.

Leo’s greatest strategic success, perhaps, has been convincing Donald Trump of his methodology: He helped Trump craft a list of potential Supreme Court nominees during the 2016 presidential campaign, which Trump widely advertised to demonstrate his conservative bona fides, and, in less than four years, Leo has shepherded 200 judges to their confirmation on the federal bench. But the president—and his supporters—made a pact premised on results. If even Leo can’t guarantee conservatives the rulings they crave, can Trump?

Conservative-movement activists were frustrated by setbacks at the Court this term, even going so far as to question Trump’s judicial vetting process. But Leo is taking the long view, arguing that his movement’s philosophical overhaul of the judiciary will yield dividends for years to come.

As they did for Trump’s other Supreme Court prospects, Leo and his team reviewed Gorsuch’s record for what they saw as independence and fearlessness. “His judicial record demonstrates a faithful commitment to the Constitution and the rule of law,” Senator Ted Cruz of Texas said at Gorsuch’s confirmation hearing. “He has refused to litigate his own policy preferences from the bench.” In mid-June, however, Gorsuch shocked conservatives by writing the opinion in one of the biggest cases of the term, consolidated under Bostock v. Clayton County, arguing that federal civil-rights law protects LGBTQ employees from discriminatory practices. . . . . Backed by Chief Justice John Roberts and all four of the Court’s liberals, Gorsuch wrote that he reached his decision in favor of LGBTQ rights using textualism, the conservative judicial philosophy. “It’s no contest,” he wrote. “Only the written word is the law, and all persons are entitled to its benefit.”

Leading conservative lawyers in Washington were shocked. . . . . Senator Josh Hawley of Missouri, who wrote a glowing CNN op-ed in support of Gorsuch’s nomination to the Supreme Court, decried Bostock on the Senate floor as a flashing sign of danger for religious conservatives, who fear that extending civil-rights protections to LGBTQ people will threaten their freedom of conscience. “If this case makes anything clear, it is that the bargain that has been offered to religious conservatives for years now is a bad one,” Hawley said. In exchange for going along with the conservative establishment, religious voters are promised judges who will protect their rights, he said, but those judges consistently fall short.

Bostock was just the beginning of bruising conservative defeats during this term. In June Medical Services v. Russo, the Court’s first big case on abortion since Trump was elected, Roberts cast the deciding vote to strike down a Louisiana law that regulated abortion providers. This was a “disaster,” Hawley tweeted. “It is a big-time wake up call to religious conservatives.

As the term produced one defeat after another—on abortion, LGBTQ rights, immigration, and tribal affairs, conservative justices leading the way each time—the sniping from conservative commentators grew more pronounced. If these are the conclusions a majority-conservative Court comes to, they asked, is the conservative legal machine really as effective as Leo and his allies have claimed?

Trump has spent the past month making the case that religious conservatives need him to protect their legal rights. “If the Radical Left Democrats assume power, your Second Amendment, Right to Life, Secure Borders, and … Religious Liberty, among many other things, are OVER and GONE!” he tweeted. He promised to release a new list of potential Supreme Court nominees by September 1, and added the current justices to a long list of his political enemies: “Do you get the impression that the Supreme Court doesn’t like me?” he tweeted. Like [Trump] the president they support, religious conservatives are likely discontent with this term at the nation’s high court. And yet, their defeats may only redouble their commitment to supporting [Trump] the president.

Evangelicals Sold Their Souls and Have Little to Show for It

The vast majority of white evangelicals sold their souls and have backed Donald Trump, thus bear a large responsibility for putting the most immoral and incompetent individual ever in the White House.  In the process, evangelicals have shown their hypocrisy and own moral bankruptcy writ large and have helped drive the younger generations away from religion entirely and have thoroughly discredited the Christian brand.  Now, when I hear someone who supports Trump espousing their claimed religious beliefs, I immediately think of two words: liar and hypocrite.  the term modern day Pharisee also springs to mind.  I am hardly alone in this reaction.  So what have evangelicals received in return for prostituting themselves and destroying the Christian brand?  As a piece in The Atlantic lays out, not so much.  The ultimate irony is that their man Neil Gorsuch wrote the Supreme Court decision that extended non-discrimination protections to LGBT Americans.  Talk about a kick in the ass. Here are article highlights that lay out the little received in exchange for the moral degradation that evangelicals embraced:  

The closest thing social conservatives and evangelical supporters of President Donald Trump had to a conversation stopper, when pressed about their support for a president who is so manifestly corrupt, cruel, mendacious, and psychologically unwell, was a simple phrase: “But Gorsuch.”

Those two words were shorthand for their belief that their reverential devotion to Trump would result in great advances for their priorities and their policy agenda, and no priority was more important than the Supreme Court.

Donald Trump may be a flawed character, they argued, but at least he appointed Neil Gorsuch to the Supreme Court.

And then came Bostock v. Clayton County, Georgia. That is the case decided in mid-June in which the majority opinion, written by Justice Gorsuch, protected gay and transgender individuals from workplace discrimination, handing the LGBTQ movement a historic victory.

It was a crushing blow for the religious right, and it must have dawned on more than a few of Trump’s evangelical supporters that if Hillary Clinton had won the presidency, the outcome of the case would have been the same; the only difference is that the margin probably would have been 7–2.

The Bostock case was not the only major legal setback for social conservatives and evangelical Christians. By a 5–4 margin, the Court—in June Medical Services v. Russo—delivered a significant defeat to the pro-life movement, striking down as unconstitutional a Louisiana law that could have left the state with only a single abortion clinic. This dashed the hopes of those who were counting on Trump’s appointees to lead the Court in overturning Roe v. Wade. (Both of Trump’s Supreme Court choices were in the minority.)

Social conservatives can point to some important religious-liberty victories. But overall, this term was a judicial gut punch for the president’s evangelical supporters. The “but Gorsuch” argument has not been destroyed, but it has been substantially weakened.

Legislatively, Trump, compared with other presidents, has not achieved all that much for the pro-life cause and religious-liberties protection. . . . . Elsewhere, Trump has engaged in a bromance with North Korea’s Kim Jong Un, the worst persecutor of Christians in the world, and established more intimate and admiring relationships with many of the world’s despots than with leaders of America’s traditional allies. And on issues that have traditionally concerned conservative evangelicals, such as fiscal responsibility and limited government, Trump has been awful: The deficit and the debt exploded under his watch, even pre-pandemic.

Based strictly on the standard of advancing causes that conservative evangelicals most care about, a fair-minded assessment of the Trump record is that some important things were achieved, especially in appointing federal judges. That clearly would not have happened in a Hillary Clinton presidency. But in virtually every other area, including the outcome of several key Supreme Court decisions, Trump has fallen short of the promises and expectations.

Now think about what the cost has been of the uncritical support given to Trump by evangelical Christians. For now, focus just on this: Christians who are supporters of the president have braided themselves to a man who in just the past few days and weeks tweeted a video of a supporter shouting “white power” (he later deleted it but has yet to denounce it); attacked NASCAR’s only Black driver, Bubba Wallace, while also criticizing the decision by NASCAR to ban Confederate flags from its races; threatened to veto this year’s annual defense bill if an amendment is included that would require the Pentagon to change the names of bases honoring Confederate military leaders; referred to COVID-19 as “kung flu” during a speech at a church in Phoenix; and blasted two sports teams, the Washington Redskins and the Cleveland Indians, for considering name changes because of concerns by supporters of those franchises that those team names give undue offense.

The white supremacist Richard Spencer, describing the neo-Nazi and white-supremacist march in Charlottesville, Virginia, told The Atlantic, “There is no question that Charlottesville wouldn’t have occurred without Trump.

For his whole life, before and since becoming president, Trump has exploited racial divisions and appealed to racial resentments. The president is now doing so more, not less, than in the past, despite the fact—and probably because of the fact—that America is in the grips of a pandemic that he and his administration have badly bungled and that has claimed more than 130,000 American lives.

As The New York Times’ Maggie Haberman pointed out on July 6, “Almost every day in the last two weeks, Mr. Trump has sought to stoke white fear and resentment.”

White evangelicals are the core of Trump’s political support, and while the overwhelming number of the president’s evangelical supporters may not be racist, they are willing to back a man who openly attempts to divide people by race. That would be enough of an indictment, but the situation is actually a good deal worse than that, since Trump’s eagerness to inflame ugly passions is only one thread in his depraved moral tapestry.

My hunch is that at the beginning of this Faustian bargain, most evangelicals didn’t imagine it would come to this, with them defending the indefensible, tarnishing their reputations, and doing incalculable damage to their causes.

The Trump presidency, which has produced few significant legislative or governing achievements, has inflicted gaping wounds on the Republican Party, conservative causes, and the evangelical movement. . . . . Much of the evangelical movement, in aligning itself with Donald Trump, has shown itself to be graceless and joyless, seized by fear, hypocritical, censorious, and filled with grievances.

One pastor of a large church on the Pacific Coast told me: “There are many reasons why young people are turning away from the Church, but my observation is, Trump has vastly accelerated that trend. He’s put it into hyperdrive.” . . . . Hollywood and the media created a decidedly unattractive stereotype of Christians. And Donald Trump fits it perfectly. Made it all seem true. And sadly, I now realize that stereotype is more true than I ever knew. It breaks my heart. In volleyball terms, Hollywood did the set, but Trump was the spike that drove the ball home. He’s everything I’ve been trying to say isn’t what the church is all about. But sadly, maybe it is.”

In the midst of the wreckage, Trump’s evangelical supporters will undoubtedly comfort themselves with this thought: They got Gorsuch.

The Supreme Court’s LGBT Ruling Will Extend Far Beyond Employment Law

Justices Gorsuch and Roberts: targets of Christofascist venom.

Yesterday's much welcomed U.S. Supreme Court ruling in Bostock v. Clayton County was limited to Article VII of the Civil Rights Act of 1964 and focused on employment discrimination.  However, the spill over effect will likely spread much farther and impact the application of other statutes that bar discrimination based on sex.  One likely victim of the ruling - even though court challenges will likely be required - is the Trump/Pence regimes efforts to roll back Obama era rules that bar discrimination in the health care realm. Applying the reasoning of Bostock, the Department of Health and Human Service's re-write of the rules runs head on into what the Court just ruled is illegal discrimination. Yes, the Christofascists are indeed seething because Bostock now provides a further weapon against their demands that the have a license to discriminate. A piece in Mother Jones looks at the likely spill over effects.  The irony, of course, is that a Trump appointee wrote the ruling,  Here are highlights:

On Monday, the Supreme Court handed LGBTQ Americans one of their biggest civil rights victories yet. In a 6-3 decision, the court ruled that gender identity and sexual orientation were protected under Title VII of the 1964 Civil Rights Act’s prohibition on sex discrimination in employment. The decision means LBGTQ folks can no longer lose their jobs simply for being queer. 

“In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964,” writes Justice Neil Gorsuch, a Trump appointee, in the majority opinion. “There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The ruling provides some much-needed clarity for lower courts and state officials, who are currently working with a hodgepodge of different (and sometimes conflicting) nondiscrimination policies.  

And though the case was specific to employment discrimination, the implications beyond the workplace are huge. The ruling won’t directly overturn discriminatory policies outside the realm of employment, says Sharon McGowan, Legal Director for Lambda Legal—which argued one of the Title VII cases before the Second Circuit Court—but it does set a precedent that makes it incredibly difficult to exclude gay and transgender people from other laws that prohibit discrimination on the basis of sex. 

Take, for example, the Fair Housing Act. In 1974, the act was amended to prohibit housing discrimination on the basis of sex, but to date, only 24 states interpret that to include LGBTQ people (or have passed state legislation that explicitly includes them). One additional state, Wisconsin, prohibits discrimination against gay people, but not transgender people. Through the years, studies have shown that LGBTQ renters and home owners have been overcharged, less likely to secure rental housing or even evicted because of their sexual orientation and gender identity.

Experts say the Supreme Court ruling could also effect things like Title IX of the Education Amendments Act of 1972—which prohibits sex discrimination in education and has recently been weaponized against transgender student athletes—and health care nondiscrimination policies. 

Just last week, Trump’s Health and Human Services Department released a prepublication version of a rule change that would roll back protections for transgender patients under the Affordable Care Act. The change is meant to undo an Obama-era policy that barred providers and insurance from rejecting care based on gender identity.

“There is still a chance for HHS to see the error of their ways and pull the rule back and fix their mistake, which I hope they will do,” McGowan says. “But assuming that they’re going to continue to forge ahead, they basically have put forth a rule that says ‘we, in the federal government, think that sex discrimination doesn’t mean the things that the Supreme Court has just said sex discrimination means.’

But now, the bad news: Monday’s Supreme Court ruling does nothing for laws that don’t include sex in their nondiscrimination policies—and unfortunately there are more of them than you might think. Federal law prohibits discrimination in public accommodations (e.g. restaurants, retail businesses, parks, libraries) based on race, color, religion and national origin only. The same is true of discrimination prohibitions in certain federally funded programs. 

“I remain more optimistic than I’ve ever been, that we will continue to succeed in rooting out discrimination in all of its forms,” says McGowan. “But I do think that there are going to be issues that that many courts—particularly courts that are hostile to the underlying pinnings of these rulings—may try to find wiggle room maybe where it doesn’t exist. We know that our work is going to continue.”

The struggle for full equality under the law continues.

Supreme Court: Yes to Gays, Clean Water and Sanctuary Cities, No to Trump/Pence

Today was a wonderful day for LGBT Americans as the U.S. Supreme Court in Bostock v. Clayton County ruled that existing civil rights non-discrimination laws regarding sex applied to LGBT citizens, thereby effectively making employment discrimination and other forms of anti-LGBT discrimination illegal nationwide. It was also a good day for California which saw the Court reject the Trump/Pence regime attack on so-called sanctuary cities   It was also a good day for environmental activists as the Court left the Clean Water Act intact.  The big loser was the Trump/Pence regime which was on the opposite side of the issue in all three cases.  The other big losers were white evangelical Christofascists who sought to have their bigotry and hatred placed above the law so that they could discriminate against LGBT citizens at will.  Indeed, some of the usually suspect in the Christofascist world are shrieking as if the world was ending - and also attacking Trump for his Court appointee, Neil Gorsuch, who wrote the majority opinion.   As a gay man, it is hard to describe my feelings.  Had this decision been handed down almost 20 years earlier, I might have been spared a financial nightmare when I was forced from a law firm for being gay.  At the time, I had zero employment non-discrimination protections.  I am SO happy that in the future LGBT individuals may be spared the experience that befell me. A piece at SCOTUS Blog explains the importance and impact of this ruling:

In affirming that Title VII’s broad scope prohibits discrimination on the basis of sexual orientation and gender identity, the Supreme Court immediately ended a form of stigmatic injury suffered by millions of citizens who identify as lesbian, gay, bisexual, or whose gender identity differs from their sex assigned at birth. The question whether the phrase “because of … sex” means what it says in the context of employer actions prohibited by Title VII has been definitively answered—it does. That is, because sexual orientation and gender identity cannot be explained as traits that someone has without making reference to the sex of the person, discrimination based on sexual orientation or gender identity is also because of an individual’s sex. The Supreme Court also once again concluded that it makes no difference under the text of Title VII whether an employer intended also to discriminate based on an additional reason, like motherhood or the identity of one’s spouse, if sex is a basis for the decision.

With that legal uncertainty removed, gone too is the practical uncertainty faced by real individuals weighing questions of whether to make career moves, geographic moves or moves to reveal aspects of their personal lives by openly sharing their authentic selves at work.

The opinion in Bostock v. Clayton County fulfills the best promises of textualism. The Supreme Court’s confirmation that all people have the right to be given the full measure of protection afforded to them by laws having meaning anchored in the written word is a powerful statement about the enduring power of people-led movements.

Maryland, along with 20 other states and the District of Columbia, expressly prohibits employment discrimination based on sexual orientation and gender identity through statute or regulation. Title VII now definitively joins these statutes in prohibiting all forms of discrimination based on sex, including discrimination based on traits like sexual orientation and gender identity that cannot be separated from an individual’s sex. The Bostock decision affirms that citizens may rely on the achievement of broad legislative protections against discrimination to provide long-lasting victory.

Importantly, the confirmation of Title VII’s sweep immediately cements protections for federal government workers, no matter their state of residency, and for individuals who work in states that have not yet specifically prohibited discrimination on the basis of sexual orientation and gender identity. In those states, LGBT workers facing discrimination may now bring complaints under Title VII to directly improve their own working conditions.

Other benefits will accrue over time. As Maryland and the 20 states and District of Columbia set forth in their amicus brief, discrimination is expensive. Reducing salary disparities, health care instability and increased health care costs due to the mental health effects of stigmatic discrimination will immediately benefit individuals and the states that care for them. There is also a body of evidence demonstrating that private industry benefits from reducing discrimination because of the increased creativity and productivity LGBT people bring to the workplace when they are included and when they are freed from the health effects of stigmatization. LGBT individuals and their families benefit from better working conditions, and so do states, which experience decreased use of their public benefits system and increased tax revenue as a result of increased innovation and productivity.

Indeed, everyone benefits except religious extremists - think Trump's evangelical base - motivated by hatred and a sick need to have others to denigrate so that they can feel a sense superiority.  

But, as noted, LBGT Americans were not the only winners today.  In its opinion in County of Maui v. Hawaiʻi Wildlife Fund the Court (including Justice Kavanaugh) sided with clean water advocates that point source discharges to navigable waters through groundwater are regulated under the Clean Water Act.   The Supreme Court also rejected the Trump administration’s effort to blow a big hole in the Clean Water Act’s protections for rivers, lakes, and oceans. As explained here these were defeats for the Trump/Pence regime:

In other words, the Clean Water Act prohibits unpermitted discharge of pollution “into navigable waters, or when the discharge reaches the same result through roughly similar means.” In doing so, the Court rejected the Trump administration’s polluter-friendly position in the clearest of terms: “We do not see how Congress could have intended to create such a large and obvious loophole in one of the key regulatory innovations of the Clean Water Act.”

Lastly, the Court also ended Trump's war on blue states that include so-call sanctuary cities.  A column in the Los Angeles Times looks at the Court's action (it is noteworthy that both of Trump's appointees ruled against his regime): 

Since his inauguration in 2017, President Trump has waged a mean-spirited, costly and unnecessary war against undocumented immigrants — many of whom have been living in this country for years and have been hard-working, law-abiding members of the their communities. Thankfully, the U.S. Supreme Court reaffirmed Monday that states and cities can’t be forced to support that pernicious effort.

California has been a regular target of Trump’s anger and frustration, particularly after the state passed a so-called sanctuary law in 2017 that limits how state and local law enforcement agencies cooperate with federal immigration agents. Former Atty. Gen. Jeff Sessions sued to overturn the state’s restrictions, complaining that California was trying to secede from federal law.

The Supreme Court brought that lawsuit to a halt Monday when it sided with California and rejected the Trump administration’s challenge. Notably, even Trump’s two appointees on the court — Justice Neil M. Gorsuch and Brett M. Kavanaugh — refused to hear the administration’s appeal.

At least for now, my faith in the Court is somewhat restored.  It would seem that with Trump's decline in the polls, even his appointees to the Court have decided to put the law first and Trump's whims and misogyny last. 

Neil Gorsuch Has Revealed Conservative Justices' Partisanship

Justices Gorsuch and Roberts.

Judges and Supreme Court Justices are supposed to base their rulings on the law, the Constitution and the facts yet increasingly we are witnessing the conservatives on the U.S.S Supreme Court and right wing Republican appointed judges - especially Trump appointees, a number of which have been rated as unfit by the American Bar Association - motivated by political ideology and partisan affiliation and even personal religious belief rather than basing rulings on the language of the Constitution, statutes and scientific and medical facts. In the recent oral arguments before the Supreme Court concerning whether LGBT Americans are protected by Title VII of the Civil Rights Act of 1964, Justice Gorsuch tipped his hand that he may be more worried by the reaction of the ugliest elements of the GOP base - think Christofascists and evangelicals - if the Court rules that it is illegal to discriminate against gays and transgender employees. Indeed, Gorsuch commented on potential "massive social upheaval" which suggests that had he been on the Court at the time of Brown v. Board of Education, we'd still have segregated schools.  A piece in The Advocate looks at Gorsuch's candid and dangerous agenda.  Here are excerpts:

As a frequent critic of the Supreme Court’s conservative majority and a long-standing activist for transgender rights, I am probably one of the few members of my community who feels grateful for Justice Neil Gorsuch’s acknowledgement that he fears extending employment non-discrimination protections to transgender Americans would unleash “massive social upheaval.” I found Justice Gorsuch’s remark — which many have interpreted as an indication that the Court may decline to protect transgender workers — to be refreshing for its honesty and transparency. If Gorsuch votes against extending protections, he acknowledged candidly, he would do so not on the basis of law, fairness, or judicial philosophy, but because of his assessment of public opinion, something Supreme Court justices rarely concede they take into consideration.

Integrity is obviously a crucial attribute of any judge, but has been sorely lacking in recent years among members of the Court’s conservative majority. To take an example I know well, earlier this year, a slim 5-4 majority accepted the Trump administration's false assertion that allowing transgender troops to serve posed a “risk to military effectiveness and lethality," thus allowing the president to reinstate the military’s transgender ban. But all service chiefs had testified that inclusive policy was a success, and the administration's claim about risk was based on medical arguments that the American Medical Association and former Military Surgeons General and U.S. Surgeons General had repudiated.

When a court’s rulings depend on the elision of fact, civil rights and even democracy itself can suffer, and the transgender military ruling, unfortunately, is far from exceptional. Critics have suggested that the Court’s most important decisions in recent years, including dismantling the Voting Rights Act and upholding the travel ban, have ignored key facts in service of partisan ends.

Given the conservative majority's arguably vexed relationship with evidence, Justice Gorsuch's integrity is admirable. But if his acknowledgment is refreshing for its candor, it is troubling at the same time, as the premise of his revelation — that a ruling extending protections would promote upheaval — has no basis in fact. Numerous polls confirm that the American public overwhelmingly supports extending non-discrimination protections to transgender employees. As a political science professor and LGBT advocate, I am unaware of any massive social upheaval in the 21 states whose laws explicitly protect transgender individuals . . . he is certainly entitled to his imagination. But his concerns have no basis in reality.

What likely worries Justice Gorsuch is that some conservatives believe that treating transgender employees equally violates their religious convictions. Setting aside that many evangelical Christians support employment non-discrimination for LGBT Americans, civil rights protected by laws and by the Constitution should not depend on the public’s comfort. Brown v. Board of Education, the 1954 ruling prohibiting states from establishing racial discrimination in public schools, led to social unrest. But it was unquestionably correctly decided. By revealing his concerns about social upheaval, Justice Gorsuch has given up the ghost on the conservative majority’s true partisan priority, whether the Court thinks the GOP’s base will like a decision. That is dangerous partisanship that has no place on the bench.

[I]t is ethically unacceptable to prioritize the religious injury that some employers might believe themselves to suffer if forced to treat transgender workers equally with the tangible injury that transgender employees suffer when they are denied employment on the basis of their gender identity. Some employers surely believe that they compromise their religious convictions when they are forced to treat women, racial minorities, and Muslims equally, but catering to such beliefs would be immoral. Whether one interprets religious objections to treating transgender employees equally as unreasonable animus or reasonable religious belief, there is no comparison between such objections and the consequences of being fired. That Gorsuch and his conservative colleagues on the bench would entertain the comparison is, at best, problematic.

Justice Gorsuch’s concern is even at odds with his judicial philosophy. Gorsuch professes a commitment to “textualism,” . . . . that explicitly disavows any concern for public opinion.

Eve Sedgwick, had an insightful reading of Justice Byron White's opinion in Bowers v. Hardwick—the now-overturned 1986 case that allowed states to criminalize same-sex sex: She demonstrated that White’s ruling against gays and lesbians depended on a refusal to recognize hard facts, a maneuver she labeled as "willful ignorance." According to Sedgwick, White's sidestepping of evidence he did not like was a “contemptuous demonstration that powerful people don't have to be acute or right."

Gorsuch’s stated concern about “massive social upheaval” smacks of the same conceit. As conservative jurists twist facts to sustain partisan rulings that injure everyday Americans, progressives are becoming increasingly vocal about the possible need for judicial reform. Hopefully, Justice Gorsuch and his colleagues will heed such warnings before driving the Court and the democracy itself off a cliff.

U.S. Supreme Court: How to Preserve White Power in Four Easy Steps

With Donald Trump's two appointments to the U,S. Supreme Court - Neil Gorsuch, who believes right wing Christian beliefs trump the civil rights of others, and Brett Kavanaugh -having shifted the balance of the Court to the far right, the Court now stands poised to implement the pro-white, pro-right wing Christian, bigotry of the Trump/GOP base.  Somewhat incredibly, conservative Chief Justice John Roberts is now the swing vote.  As a column in the Washington Post notes, a series of cases have the potential to preserve disproportionate white power thanks in no small part to the peevish Bernie Sanders who refused to vote for Hillary Clinton in 2016. Whatever legal horrors may be forth coming, responsible citizens never forget to remember that these Sanders voters and Jill Stein voters ushered in this potential nightmare (something 20% of Sanders supporters have said they will do again in 2020 if their cult leader is not the Democrat nominee);  Here are column highlights from the Washington Post on today's oral arguments and what may be forthcoming:

The Trump administration and Republican-appointed Supreme Court justices Tuesday held a legal seminar on how to preserve white hegemony in four easy steps.

Step 1: Devise a discriminatory policy.
In this case, Commerce Secretary Wilbur Ross, after consulting with Stephen Bannon, who was then President Trump’s nationalist “alt-right” adviser, resolved to put a citizenship question on the 2020 Census for the first time in 70 years. This would have the well-documented effect of reducing responses to the census by Latinos (from citizens and noncitizens alike), resulting in the undercounting of that population for purposes of congressional apportionment and $900 billion in federal funding.

Step 2: Create a pretext.
In this case, Ross lied to Congress, saying the Justice Department wanted  the citizenship question added to help enforce the Voting Rights Act — a claim three lower courts dismissed as pretextual. In fact, emails showed that Ross (with White House encouragement) was the one who pushed for the citizenship question and quietly dragooned the Justice Department into asking for the question to be added.

Step 3: Muddy the waters.
In this case, Solicitor General Noel Francisco and conservative justices raised doubts about the statistical capabilities of the Census Bureau, claiming it couldn’t accurately “quantify” the damage that would be done by adding a citizenship question because the alternative way to get such information was an “untested statistical model.” Why “untested”? Because the administration denied its experts’ requests to run tests before leaping to a decision.

Step 4: Blame the victim.
Francisco, the top Trump administration lawyer, saved this nastiness for the final minute of the 80-minute argument. If the court disallows the citizenship question, he said, “you are effectively empowering any group in the country to knock off any question on the census if they simply get together and boycott it,” he said, raising the possibility of a boycott by gender-nonbinary people.

For decades, the decennial census sent to each household hasn’t included a citizenship question (it’s instead asked on surveys), and for good reason. Latino residents — legal or illegal — tend to resist such questions out of an (unfounded) fear the government might use the information against them or their relatives. Census Bureau research has projected a drop of at least 5.1 percent from noncitizen households if the question is added, part of an estimated undercount of 6.5 million people. This contradicts the Constitution’s requirement for an “actual enumeration of the people” — not just citizens.

But the conservative justices seemed willing to overlook Ross’s lie and the administration’s dubious justifications.

Francisco began with a deception, saying the citizenship question “has been asked as part of the census in one form or another for nearly 200 years.”

Justice Ruth Bader Ginsburg asked Francisco the same question three times before he acknowledged that the citizenship question had been abandoned in 1960, in part, because it would depress the count of noncitizens. . . . So the administration is free to disregard millions of Latinos in the census — and the courts have no say.

This seemed to be fine with Republican-appointed justices. Justice Samuel Alito said he was satisfied that the accuracy would be 98 percent if the citizenship question were asked (never mind those 6 million or so left out).

Trump’s two appointees developed a newfound fondness for foreign law: Justice Brett Kavanaugh pointed out that the United Nations recommends a citizenship question, and Justice Neil Gorsuch said “virtually every English-speaking country” asks one.

More disturbing were their counterfactual theories claiming some other, unknown variable might cause Latinos not to answer the census. (No such notions appeared in the case record, and census experts had already controlled for other variables.)

The justifications all sounded a bit “contrived,” as Justice Elena Kagan put it, like so much “post-hoc rationalization” of a decision made for another reason.

When you consider that the indisputable effect of adding the citizenship question will be to suppress Latinos’ census participation — and by extension to suppress their political clout — it is difficult not to be cynical about what that reason is.

That's right, a 6.5 million person under count.  To put that in easily understood terms, that is more than 10 times the population of Wyoming or larger than the populations of the Washington, Houston, Miami or Philadelphia metropolitan areas. 

My big complaint with the column - and the mainstream media in general - is that it persists in using the word "conservative" to describe justices and others who are in fact outright racists and bigots.  In the context of the upcoming LGBT employment non-discrimination cases before the Court this term and next term, no doubt "conservative" will be used instead of homophobic and anti-LGBT bigots.  It is far past time that the media begins to call out judges, justices, elected officials and candidates for office for what they truly are and throw away the false and deceptive term "conservative" once and for all. 

The Far-Reaching Threats of a Conservative Court

Of all the things Donald Trump and Vichy Republicans have done to date to undermine democracy in America, perhaps the worse is the shifting of the U.S. Supreme Court to the far right.  With a majority of justices who seemingly would undo progressive legislation from the New Deal forward and happily see a return of the robber baron days of the Gilded age, the damage could be immense.  The circumstances also highlight the need to do something to change the make up of the U.S. Senate where the disproportionate representation of small states - Wyoming with two U.S. Senators has a smaller population than the cities of Virginia Beach and Norfolk when added together - wildly exceeds anything the Founding Fathers could have envisioned.  Indeed, the Senate now almost guarantees a tyranny of the minority of anti-modernity, racist red states which in general have smaller populations than blue states which for the most part fund the federal government hand outs to red states. A column in the New York Times looks at the coming threat from a right wing Supreme Court which will likely bring us more pollution, inaction on climate change and an erosion of individual rights and protections.  Here are column excerpts:

With the start of the Supreme Court’s new term, many people are wondering whether the conservative majority, which has taken a further step to the right with the appointment of Brett Kavanaugh, will overturn Roe v. Wade.

But that’s not where the action is. As two cases argued before the court this month illustrate, the real question is whether it will undermine the system of government that has protected the public from abusive business practices since the New Deal.

The two cases might seem esoteric, and far removed from government protection of workers and consumers. Gundy v. United States involved a challenge to the attorney general’s extension of sex-crime-registration law to offenders convicted before the law was enacted. Nielsen v. Preap involved a government policy that deprived certain unauthorized immigrants of some procedural protections against deportation.

The conservative majority can, and most likely will, rule against the government using broad theories that would also eat away at the constitutional foundations of the New Deal system, which is essential for protecting health and safety, the environment and much else.

Since the New Deal, Congress has authorized regulatory agencies to make policy by issuing regulations. These agencies are now a familiar part of our government. They include the Environmental Protection Agency, the National Labor Relations Board and the Federal Emergency Management Agency, which is currently aiding hurricane victims in Florida. Agency regulation became necessary as the problems of a modern industrialized nation overwhelmed the regulatory capacities of states, local governments and Congress itself.

The New Deal agencies initially encountered resistance from the Supreme Court, which was then, like now, a reactionary institution that frowned on novelty. . . . Eventually, common sense prevailed over these legalistic objections. Congress itself lacked the capacity to engage in the detailed regulation that is necessary to keep a modern economy humming while protecting workers and consumers. Agencies were needed.

By the 1980s, half a century after the New Deal, a political and legal consensus in favor of the administrative state had solidified. Left and right argued about how much regulation was needed, of course, but no one doubted the constitutional foundations of the administrative state — not even Justice Antonin Scalia. . .

.But Brett Kavanaugh is a skeptic. And so are Neil Gorsuch, Donald Trump’s first appointment to the Supreme Court, and Clarence Thomas, who was appointed back in 1991. The views of Chief Justice John Roberts and Justice Samuel Alito are less clear, but their judicial opinions point in the same direction.

The conservative assault on the administrative state has four elements.

First, Justices Gorsuch and Thomas want to revive a discredited legal rule that was invoked by the Supreme Court in 1935 and then abandoned. The “nondelegation doctrine” says that Congress may not “delegate” its legislative power to administrative agencies . . . .

Second, Justices Gorsuch, Kavanaugh and Thomas want to undermine a rule called the Chevron doctrine, after a 1984 Supreme Court case. That rule says that when an agency regulation is based on a reasonable interpretation of a statute, courts should “defer” to the agency. The Chevron rule codified existing judicial recognition of the core idea of the administrative state. Specialists — in environmental hazards, in credit markets, in workplace safety — should regulate.

Third, the conservative justices dislike the principle of agency autonomy and have looked askance at job protections for agency officials.

Fourth, the conservative justices have endorsed a novel interpretation of the First Amendment that protects businesses from regulation — from campaign finance regulation, labor regulation and even regulations that require them to disclose information to consumers.

Justices Kavanaugh, Gorsuch and Thomas claim to be “originalists,” who believe that the court should strike down laws that violate the original understanding of the Constitution. But the founders did not bar Congress from creating administrative agencies or think that the First Amendment protected businesses from commercial regulation.

The new conservative jurisprudence may help some businesses in the short run but ultimately will undermine the legal structure in which they flourish.

The answer is both obvious and depressing. The modern conservative jurisprudence is an exercise in nostalgia, a yearning for pre-New Deal America when, supposedly, government was less oppressive and people were freer than they are today. You can see this nostalgia in the homilies to olden times in Justices Gorsuch’s and Kavanaugh’s lectures — and their insistence that answers to today’s challenges can be found in a theory of government invented in the 18th century by men wearing breeches and powdered wigs.

This jurisprudence appeals to many people in a populist era that distrusts experts, chafes at bureaucracy, fears change and longs for a simpler past. But like so much being peddled by ideologues and partisans these days, it’s a sham.

The Courts Are Being Stacked to Strip Away LGBT Rights

German judges during the Nazi era in Germany. These judges  - all the while purporting to support
the rule of  law - handed down rulings that deprived people of basic human rights.

As noted before, besides being a political junkie, I was a history major in college and have continued to read historical works in the decades since.  One of the periods in history I find most disturbing and horrifying is the period when Hitler rose to power in Germany which then progressed into World War II and the Holocaust.  Hitler used several tools to rise to power some of which included (i) fanning hatred against racial and religious minorities (e.g., Gypsies and Jews) and depicting them as dangerous and less than human, (ii) attacking the press and calling legitimate news that sought exposed Nazi tactics as the German equivalent of "fake news" and (iii) used the courts and legislation to strip away the rights of targeted minorities. In his effort, he was aided by "good Germans" who either looked the other way at wrong doing or supported Hitler's efforts because he played to their prejudices and bigotry.  Many of these "good Germans" were  - or at least pretended to be - good Christians.  

Fast forward to today and we see a number of the same tactics being employed.  Watch a Trump rally and then watch a clip of from a Hitler rally.  The similarities are disturbing and certain groups are being targeted for hate and mistreatment today just as in the 1930's.  Then, of course, we hear the constant lie that main stream media is disseminating "fake news."  And we are seeing the third element, as well, as Trump is packing the federal courts with right wing extremists.  Voting rights are being stripped from minorities and others seem destined to see a right wing controlled U.S. Supreme Court declare them as open game for discrimination. Just as disturbing, I see far too many - including "friends" - cheering all of this on as they remain seemingly oblivious to the very real harm that many will suffer. Among these cheerleaders are the Christofascists to whom Trump promised the moon in exchange for their political support.  They, however, know full well the harm they are doing and find it perfectly fine.  Like the Auschwitz staff in the image below, they see others who do not subscribe to their beliefs as less than human and worthy of mistreatment.  In the case of gays, they even use the same sorts of lies merely swapping the word "Jew" for "gay" or "homosexual."  They are now seemingly poised with the help of Trump judicial appointments, including that of Neil Gorsuch and Brett Kavanaugh, to begin stripping away the rights of LGBT citizens with the help of the five "conservatives: on the high Court.  A column in Huffington Post looks at this frightening prospect: 

While much of the country was in an uproar over the nomination (and confirmation) of Brett Kavanaugh to the U.S. Supreme Court, anti-LGBTQ religious extremists in Texas filed a federal lawsuit against the city of Austin targeting its anti-discrimination ordinance protecting LGBTQ people, claiming it infringes on their religious liberty. Two days later, another anti-LGBTQ group in Texas filed a second, separate and even broader lawsuit attacking the Austin ordinance in state court.

[I]f the U.S. Supreme Court ― or individuals’ state Supreme Courts ― were to rule such laws in violation of “religious liberty,” hundreds of such laws protecting LGBTQ people across the United States could be wiped out.

The Supreme Court did, in fact, have a chance to do that earlier this year ― or to do the opposite and make it clear that LGBTQ people are constitutionally protected ― in its Masterpiece Cakeshop v. Colorado Civil Rights Commission decision. But it punted on either outcome.

And while Justice Anthony Kennedy, writing for the majority, said that Colorado and ostensibly any other state or locality “can” protect LGBTQ people from discrimination, he and the court didn’t emphatically state that those protections are constitutionally guaranteed, leaving it for another case to decide the issue.

The optics of the case, however, were terrible ― seen as a victory for anti-LGBTQ extremists, no matter how narrow, and emboldening them moving forward.

With Kennedy gone, the Supreme Court could indeed clarify the issue when another case reaches it; and it could quite possibly be a very dark decision.

So on Oct. 6, as the Senate narrowly confirmed the hard-right Kavanaugh to replace Kennedy, the Houston-based U.S. Pastor’s Council, representing 25 churches, filed its lawsuit in federal court in Austin seeking to overturn the city’s employment protections based on sexual orientation and gender identity, claiming they violate the U.S. Constitution, the Texas Constitution and the Texas Religious Freedom Restoration Act.

“I firmly believe they waited to file until [Kavanaugh] was confirmed,” Meghan Stabler, a noted Austin LGBTQ activist and former board member of the Human Rights Campaign, told me. She thinks the groups had been working on their respective filings for some time and coordinated their efforts. It’s “a clear indication of what is to come with regards to the religious liberty issue” and the high court, Stabler said. “If this effort succeeds in the courts, it would be open season for discrimination against LGBT people not just in Texas, but across the country,” said Dan Quinn, communications director of the Texas Freedom Network, which has long battled both groups that filed the lawsuits. . . . . the lawsuits are not about “religious freedom,” but rather an attempt at “sweeping away anti-discrimination protections that have been on the books for decades.” As with abortion rights issues, the larger goal of anti-LGBTQ groups is to keep filing these kinds of lawsuits until they hit judges or justices who will help them score a win, overturning any precedent or narrowing previous Supreme Court rulings.

The road through Texas seems like a strategic decision. The lawsuits are two-pronged: One is challenging the law in state court, the other in federal court. If the very conservative and anti-LGBTQ Texas Supreme Court were to rule in favor of the religious extremists ― which doesn’t seem like a stretch ― Texas Freedom Network’s Dan Quinn speculated other states hostile to LGBTQ rights would move in the same direction. 

The federal lawsuit, meanwhile, could find its way to the Supreme Court via the 5th U.S. Circuit Court of Appeals, which turned away a challenge by LGBTQ advocates to Mississippi’s broad and discriminatory Religious Freedom Restoration Act in 2017, . . . . That law, viewed by many legal advocates as among the most discriminatory anti-LGBTQ laws ever passed, allows businesses that offer wedding-related services to refuse them to LGBTQ people and allows religious groups to discriminate in employment and housing. It allows adoption and foster agencies to discriminate against gay and lesbian couples. And it even allows doctors and mental health counselors to turn away LGBTQ people simply based on the practitioners’ religious beliefs.

LGBTQ advocates then appealed the decision to the Supreme Court, which, in January of 2018 ― with Kennedy still on the court ― jarred advocates when it refused to hear the case, letting the horrendous Mississippi law stand.

Neil Gorsuch is a religious liberty crusader who is chomping at the bit, waiting for such a case. His past writings and a dissenting opinion on the court last year have made that clear. And Kavanaugh’s own record and his responses to questions about marriage equality during his confirmation hearings ― not to mention the partisanship and anger at “the left” he displayed during the hearing on the sexual assault allegations against him ― show that he can’t be relied upon to be a swing vote to protect LGBTQ rights.

[W]ith Kavanaugh on the Supreme Court, the timing of the suits ― filed as he was confirmed and sworn in as a justice ― should also be a blaring siren for everyone who cares about civil rights for LGBTQ people. 

Some of the staff from Auschwitz - none looked like monsters despite the horrors
they perpetrated. Do not be fooled by appearances or false claims of morality and decency.

 If you are LGBT, you have good reason to be very afraid.

Trump, Brett Kavanaugh and the Effort to Destroy LGBTQ Rights

With the nomination of Brett Kavanaugh to the U.S. Supreme Court, the sense of dread and impending doom that has lingered over me and many others since the disastrous results of the 2016 presidential election has again intensified.  I suspect even straight LGBT allies do not fully appreciate the corrosive effect living in fear that one's rights will be curtailed or abolished at the whim of a malignant narcissist and a hate-filled minority empowered by a flawed U.S. Constitution which has concentrated too much power in rural, reactionary states. As a history nerd, if you will, who has read much about the rise of Hitler in Germany, I cannot help but wonder whether some of Hitler's future victims had similar fears as they saw Germany slowly embrace insanity and barbarism.  A piece in Huffington Post looks at the threat that Brett Kavanaugh may pose to LGBT Americans in particular and American democracy in general.  Here are highlights:

There was some attention ― and perhaps even a bit of hope ― this week after the anti-LGBTQ American Family Association came out immediately in opposition to Judge Brett Kavanaugh (urging members to call their senators), President Donald Trump’s nominee to the Supreme Court to replace retiring Justice Anthony Kennedy.

The AFA was rattled by Kavanaugh’s previous statements that precedent actually matters. Like National Review’s David French and other social conservatives, the AFA’s first choice for a nominee on Trump’short list was Judge Amy Coney Barrett, who has been very clear about how religious faith should guide a judge’s decisions.

But after a couple of days, the AFA walked that back . . . . Maybe the AFA realized something we all should be enormously concerned about: Kavanaugh’s beliefs on marriage equality and Obergefell v. Hodges might matter far less than his breathtaking views on expansive presidential power when it comes to the rights of LGBTQ people.

When the president is an authoritarian, after all, allowing him expansive powers will be far more efficient at curtailing the rights of minorities than waiting for the Supreme Court to weigh in on every case, which might take years to reach it.That, of course, is not to say that Kavanaugh isn’t on board with the anti-LGBTQ agenda. As I’ve been writing about for the past few years, the goal of anti-LGBTQ leaders is to turn gay marriage into second-class marriage. This was the plan well before the Obergefell ruling, as I sat in on a panel in 2014 at the Values Voter Summit where prominent anti-LGBTQ leaders discussed how they would do to marriage equality what they have done to abortion rights: chip away at it over years to diminish it dramatically. 

That assault on marriage equality has only just begun, with the “religious liberty” crusade lookingto carve out exemptions for those who oppose LGBTQ rights. Whether it is bakers and florists or adoption agencies, the idea is to allow religious objectors to discriminate.Thus with Kavanaugh, the question isn’t whether he believes in precedent or would overturn Obergefell outright. It’s about where he stands on carving out these exemptions.

Neil Gorsuch (for whom Collins voted) in his confirmation hearings called marriage equality “absolutely settled law.” . . . . But Gorsuch has gone on to assault LGBTQ rights, most notably in a dissent that was seen as an open invitation to the state of Texas to challenge or carve out exceptions to Obergefell.

We can expect the same of Kavanaugh. An analysis by political scientist Lee Epstein puts Kavanaugh to the right of Gorsuch and Justice Samuel Alito and just slightly to the left of the farthest-right justice, Clarence Thomas. It’s hard to imagine any scenario in which a justice in that position would rule in favor of LGBTQ rights. Cases will be coming to the Supreme Court regarding adoption laws and gay couples, the rights of transgender students and transgender people serving in the military and businesses denying service to LGBTQ people based on the business owners’ religious beliefs. . . . There’s no question another case regarding a business owner who wants a religious exemption to serving queer people will reach the court. 

But even more threatening is Kavanaugh’s view of expansive presidential power ― an issue Democrats are now focusing on,as it seems directly related to why Trump might have chosen him. Kavanaugh has written that Congress should pass a law that protects presidents from lawsuits,indictments and investigations like the Russia probe. And his decisions have shown he backs a concentration of power in the executive branch on international and domestic issues. He supports the unitary executive notion of presidential power. 

That could have dire consequences regarding Trump’s decisions to ban transgender people from the military and sign other draconian executive orders. A far-reaching religious liberty executive order ― which would have allowed for broad-based discrimination against LGBTQ people, women and other groups ― was slowed down by the administration last year and replaced with a series of less expansive ones, in part, it appears, because of fears the order would face a legal challenge.

But with Kavanaugh on the Supreme Court, such far-reaching orders could be deemed as passing constitutional muster, giving Trump further power to assault LGBTQ rights ― and the rights of many other minorities ― on his own, with the stroke of a pen. And that would bring Trump much closer to what seems to be his clear aim, establishing a dictatorship.

Be very, very afraid.