The Supreme Court, post-Scalia, has two solid conservative justices, Thomas and Alito. Gorsuch has proven himself to be another Roberts. That shouldn’t be surprising. Kavanaugh, despite how much conservatives bled for him, is, even less surprisingly, a disappointment.
Justices Neil Gorsuch and Chief Justice John Roberts joined the liberal wing of the court to affirm that the law does cover discrimination by sexual orientation. Gorsuch, in fact, wrote the majority opinion. Justices Sam Alito and Clarence Thomas dissented. Finally, Justice Brett Kavanaugh wrote a separate dissent stating that he agreed with Alito and Thomas on the merits but sympathized with the majority’s conclusion. All five claimed their opinions adhered to a textualist reading of the law.
Textualist is better than simply inserting words into the Constitution. But it revises the meaning of the words that are already in there to mean things that they never represented. Or, in this case, the Civil Rights Act. It’s legislating from the bench in a slightly more respectable way, but one that typified the Warren Court. That this is now the moderate or even the conservative position is utterly disastrous.
President Trump may have one more SCOTUS appointment. The next one should not be a whitebread smiling product of the system, but another feisty Italian-American or African-American judge with principles.
The underlying problem is that lefty judges maintain almost total fidelity to their political agenda, while conservative justices have “philosophies” and while they may be socially conservative in their own lives, allow the media to set their agenda and worldview.
These days, they’re sympathetic on some structural issues and on the Second Amendment, but are hopeless on socially conservative issues.
What SCOTUS needs are justices willing to stand athwart of history.
A narrow SCOTUS conservative majority will always offer swing votes making such courts, at best, a 50/50 proposition. And the defections are invariably on the causes that conservatives have fought hardest for and that will hurt them the most down the road.