September 2018 was a very noisy period of Trump’s Presidency, as his Supreme Court nominee, Brett Kavanaugh, had hearings in Senate of the United States. Kavanaugh was to become the second Justice nominated by the 45th President of the United States and his approval would be very dangerous for the liberals. This young man was going to replace Anthony Kennedy, swing Justice of the Supreme Court, who mostly backed the liberal majority in key moments and cases.
As the Supreme Court has a pivotal role in the development of the federal judiciary, his constitutionalist justice could give hope for the conservative agenda. Kavanaugh got 50 votes and became an Associated Justice of the Supreme Court but he had the least support of any Justice in the last 100 years.
But it is significant, that despite the additional vote of Kavanaugh, the Supreme Court continues to follow the liberal concept called the Living Constitution. Conservatives have a specific vision of judiciary – the concept of Originalism, mostly developed by Associate Justice Antonin Scalia, which means interpreting the constitution according to the framers’ intent. This concept indicates that the discretion of the Court is to interpret the law, rather than creating additional rights beyond legislation. For example, when there is no legislation framed by Congress about abortion rights, according to Originalism the Court is not able to extend abortion rights without Congressional support.
Therefore, June 2020 was a month of significant failure for conservatives and supporters of Originalism. Chief Justice Roberts, who was considered conservative leaned to the left for three controversial decisions in June, which were about Deferred Action for Childhood Arrivals (DACA), gender identity issues under the Civil Rights Act of 1964, and a Louisiana bill on abortion restrictions.
In the DACA decision, by which the Court allowed young illegal immigrants to stay and get benefits in the United States, Chief Justice Roberts joined liberal justices. But Justice Thomas clarified in his dissent that because the Obama administration’s implementation of DACA was unlawful, the decision by Homeland Security was “clearly reasonable”.
I think the opinion of the Court on the case Bostock v. Clayton County (concerning the Civil Rights Act of 1964) was a total disappointment for conservatives and libertarians, as Justice Neil Gorsuch, nominated by President Donald J. Trump, supported the liberal majority and technically created an extension to the law.
Specifically, Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace based on race, color, religion, sex and national origin. It is very clear, that this law cannot include gender identity under the name of sex, because in 1964, LGBTQ rights were not specified in anti-discrimination laws and as such, should not be added by the judiciary.
Neil Gorsuch, a well-known Originalist, opposed this opinion and declared that “In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee.” Gorsuch met strict criticism from the Originalist justice Samuel Alito, who wrote in his dissent that Americans in 1964 would not have considered a prohibition on discrimination based on sex to include those who are LGBT. Congress tried to amend Title VII to include “sexual orientation” and “gender identity” in its definition of discrimination based on sex, but the Senate refused to move the bill in 2019.
Another controversial case was about the Louisiana abortion bill, which was the first abortion ruling since President Trump’s two appointees took their seats in the Supreme Court. The Louisiana law was declared as an undue burden for women who seek an abortion and thus unconstitutional by liberal justices plus Chief Justice Roberts, who had consistently opposed abortion in earlier cases. Justice Thomas opposed the opinion of the Court by saying that “a majority of the Court perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law and doing so without jurisdiction.”
The major purpose for Originalists is to avoid creating legislation through the decisions of the court, as law making is the solely the prerogative of the legislature. As Originalists commonly declare, despite Justices having good intentions, interference in the constitutional prerogative of other branches of government encourages judicial activism and the avoidance of principles of the rule of law and the separation of powers.