Everyone knows that there are liberal US supreme court justices and there are conservative supreme court justices, and usually in a politically charged case you can pretty well predict the way the justices will vote by where they stand on the left-right spectrum. But not always: the decision upholding Obamacare’s individual mandate was written by Bush-appointed Chief Justice John Roberts, and the decision legalizing same-sex marriage throughout the United States was written by Reagan appointee Anthony Kennedy.
In the last week, progressives have notched two more supreme court victories with unexpected votes by the conservative justices. In Bostock v Clayton county, the Trump-appointed justice Neil Gorsuch wrote in a majority opinion that discriminating against LGBTQ+ employees violates the 1964 Civil Rights Act. And in Department of Homeland Security v Regents of the University of California, in a 5-4 decision, the court decided that the Trump administration could not proceed with its plan to eliminate Daca, the Deferred Action for Childhood Arrivals program that protects certain immigrants from deportation. Donald Trump has been apoplectic over the decisions, calling them “shotgun blasts to the face” of conservatives.
If your theory of judicial behavior is a purely political one, these results might seem mystifying. Why is Gorsuch siding with the liberals? Donald Trump’s “shotgun to the face” is one he himself loaded and fired, by appointing Gorsuch to the court. Was Gorsuch a Trojan horse, a person of secret left-ish sympathies?
No, of course not. Because while the court is extremely political, it’s not completely political, and sometimes judges do in fact make rulings for reasons other than where they stand on the left-right spectrum. And that’s important, because it means we shouldn’t really think of the court as having made “progressive decisions” at all. They were rulings that had progressive outcomes. But the justices’ politics haven’t changed, and we can’t assume there is any kind of pattern here. The court is still fundamentally conservative, and these rulings are more the product of luck than any kind of shift in the “hearts and minds” of Neil Gorsuch and John Roberts. Do not be surprised if next year, they rule in ways that hurt LGBTQ+ people and immigrants just as much as this week’s rulings have helped them. We can celebrate the outcome, but we certainly shouldn’t treat Roberts and Gorsuch as champions of the rights of the oppressed.
To think about what the decisions imply about the court itself, it’s helpful to understand the justices’ actual reasoning in each case. In Bostock, Gorsuch’s reasoning was very simple: the 1964 Civil Rights Act prohibits discrimination on the basis of sex, and while it does not specifically prohibit discriminating against people for being LGBTQ+, in practice there is no way to discriminate against a person for being LGBTQ+ without discriminating against their sex. After all, if I fire a man for being attracted to men, but I would not fire a woman for being attracted to men, what is making the difference in my conduct? The sex of the employee. Gorsuch said that it doesn’t matter whether Congress intended to prohibit discrimination against LGBTQ+ people, because the thing they did prohibit covers acts of anti-LGBTQ+ discrimination.
It’s very straightforward reasoning. It’s also quite “conservative”, in the sense that Gorsuch is applying a form of judicial interpretation usually associated with conservatives, most notably Antonin Scalia. Scalia was an advocate of textualism, meaning that the words of a statute matter far more than what the lawmakers writing it intended for it to do. If applying the law in its most literal form has a negative unintended consequence, tough luck. Gorsuch felt that a consistent application of textualism required ruling in favor of LGBTQ+ rights. But if Gorsuch’s vote resulted from his highly literal interpretive theory, there’s no reason to expect he will be progressive in cases involving LGBTQ+ people more generally. The Human Rights Campaign opposed Gorsuch’s confirmation originally citing worrying past decisions, and while there is evidence that he is not personally homophobic, if the “textualist” reading of a statute goes against LGBTQ+ people next time, they are unlikely to find Gorsuch so friendly to the cause.
In the Daca case, too, there is more going on than simply “John Roberts being favorably disposed toward immigrants.” Roberts himself wrote in his opinion that the decision had nothing to do with the merits or justice of Daca, but was purely about a procedural issue: “We do not decide whether Daca or its rescission are sound policies… We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.” Of course, judges always say that what they’re doing isn’t political, even when it is, but there are justices with fetishes for procedural regularity, whose loyalty to the process far exceeds their loyalty to any kind of “justice” or political value. The ostensible issue in the Daca case was whether, under the Administrative Procedure Act, the Trump administration’s had undergone the proper process for presenting its justifications for ending the program, and whether the administration’s judgments about Daca’s legality had undergone the correct amount of deliberation.
This is a rather dull question of administrative law, and the issues being argued about have very little to do with whether or not Daca is a good thing. Of course, it could be that John Robert’s subconscious sympathies for immigrants are influencing his judgment on the administrative law question. But it could also be that they aren’t, and that he’s genuinely committed to ensuring that executive branch agencies undergo a particular series of steps in order to make or rescind new rules. If that’s the case, under a Democratic administration, progressives might find that Roberts proves just as much an obstacle to the accomplishment of progressive goals as he is currently proving to the accomplishment of Trump’s goals. The law that is applied in our favor one day will be applied against us the next.
Judges make decisions for all kinds of reasons, ranging from their ideals of justice to whether or not they have had lunch. Sometimes partisan political values guide a judge, but sometimes the desire to avoid looking like a political partisan guides them. The point is: we can’t rely on the justices’ conscience to improve the world. Even “progressive” justices like Ruth Bader Ginsburg often turn out to have unexpectedly conservative streaks, and while a conservative may look like a lefty from time to time, it’s frequently because of an obscure procedural issue that nobody except lawyers understands or cares about. Justice is sometimes served at the supreme court, but when it is it’s often by chance. The court won’t save us, and conservative justices are still not our friends.
