OPINION:
The confirmations of Justices Neil Gorsuch and Brett Kavanaugh to the U.S. Supreme Court were heralded as major victories for conservatives. At long last, there was said to be a 5-4 conservative majority at the highest court in the land.
Conservatives across the country breathed a collective sigh of relief: The future of the country they thought, regardless of who controlled Congress or occupied the White House, was safe for at least one more generation. President Trump touted the confirmations of Justices Gorsuch and Kavanaugh among the list of his greatest achievements.
The cheers from Mr. Trump’s rallygoers suggested that his base approved of the newly-appointed adjudicators (the appointment of conservative judges ranked high among Trump voters’ priorities). However, a recent barrage of questionable Supreme Court decisions suggests that the celebration among conservatives may have been premature.
Conservatives were aghast last week when the Supreme Court committed “what may be the biggest sellout of conservatism by conservative justices in the history of the Supreme Court,” according to Rush Limbaugh. Justice Gorsuch and Chief Justice John Roberts sided with the court’s liberals in a move that left conservatives dazed and confused.
Daniel Horowitz proclaimed, “Within 35 minutes today … what some thought was the most conservative Supreme Court of all time concocted a fundamental right to transgenderism in the context of labor law, erased the Second Amendment, and interfered with a state death penalty case, but declined to interfere with a law that criminalizes law enforcement cooperation with federal immigration agents.”
Justice Gorsuch’s defection came as a shock to those who supported his confirmation. Neil Gorsuch was sold to the public as a “principled originalist in the mold of Antonin Scalia.” It is far-fetched to believe that Justice Scalia would have ruled that barring a male, who claims to be a female, from entering a ladies’ restroom or an all-girls locker room would constitute sex-based discrimination, but that is precisely what Neil Gorsuch decided last week.
Some floated the idea that Justice Gorsuch may have sided with the liberals out of fear, after witnessing the left’s attempted personal destruction of Brett Kavanaugh. Democrats had dragged Justice Kavanaugh through the mud during his confirmation process, accusing him of having once run a gang-rape syndicate. The supposed rape victim’s lawyer admitted after-the-fact that her client came forward because she felt compelled to “put an asterisk next to [Kavanaugh’s] name” before he “takes a scalpel to Roe v. Wade.”
In perhaps the greatest of ironies, Justice Kavanaugh would soon thereafter side with Planned Parenthood, when he joined Chief Justice Roberts and the four liberal justices in declining to review whether states can block abortion providers from their Medicaid programs. Maybe Justice Gorsuch was simply falling in line, as Justice Kavanaugh had done in the Planned Parenthood case?
The chief justice siding with the liberals was no surprise to conservatives. Chief Justice Roberts lost all credibility with conservative voters after doing his best judicial Gumby impersonation to pass Obamacare. Chief Justice Roberts has since become a reliable vote for the liberals. And Chief Justice Roberts once again sided with the liberals when the court rejected President Trump’s plan to repeal President Obama’s DACA executive order. Chief Justice Roberts said the court did “not decide whether DACA or its rescission are sound policies,” but called Mr. Trump’s efforts to repeal the program “arbitrary and unjustified.”
Republicans were downright giddy after Brett Kavanaugh was confirmed by the narrowest of margins. Speculation immediately turned to who Mr. Trump would appoint to replace the aging Justice Ruth Bader Ginsburg. The Trump camp alluded to the fact that their next pick would be a true conservative (unlike the moderate Justice Kavanaugh, who was picked to mollify the Republican establishment).
Conservatives gleefully envisioned a Supreme Court with 6-3 conservative majority. They presumed that such a majority would finally put an end to the court’s legislating from the bench, and the Second Amendment would be saved from the left’s attempts to scrap it. Unfortunately for conservatives, history suggests their confidence is misplaced. Unlike Democrats, who remain principled and always appoint committed leftists to the court, Republicans have a history appointing centrists or liberals to the court in an effort to appear “bipartisan.”
It certainly appears as though Justices Gorsuch and Kavanaugh (like Justices Roberts, Kennedy, Brennan, Souter, O’Connor, Stevens, Stewart, Warren, Powell and Blackmun before them) are just the latest in a long line of Republican-appointed judges whom Republican voters cannot count on. Sadly, this author sees no reason to believe that this pattern will ever change.
• Charlie Eastman is a writer who resides in Texas and Florida.
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