The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Over the past decade, Congress has tried, and failed to amend Title VII to provide protections for LGBT individuals. Both the majority and dissent recognized this fact, but drew different implications from this history. The majority and dissent would likely also agree that after Bostock, Congress will have no need to amend Title VII. They are all too happy to let the Court take care of it.
Senator Hawley was one of the few Republicans who criticized the decision. Most Republicans were publicly ambivalent. President Trump said, "They've ruled, I've read the decision and some people were surprised. But they've ruled and we live with their decision." He added, it was "a very powerful decision, actually."
Trump often talks a big game about "so-called judges," but so far has not shown the slightest Jacksonian streak. (Can we please drop the never-ending fan fiction that Trump would not leave office if he loses?) Had the Court ruled against him in the travel ban case, I suspect he would have fumed on Twitter, and then move on quietly. Indeed, we haven't heard a peep about the fact that the Court denied review in the sanctuary city case.
In any event, Trump probably agreed with the outcome in Bostock. The legal particulars are irrelevant. (There is no way he read the decision). During the campaign, Trump was somewhat favorable to gay rights. But he never considered sponsoring legislation to amend Title VII. Such a move would have been unpopular.
Congressional Republicans also tacitly approved of the decision. Here are quotes from Senators Cornyn, Thune, and Graham
"They interpreted our statute and I'm OK with it," said Sen. John Cornyn, a Republican of Texas, who added that Gorsuch, President Donald Trump's first pick for the high court, "is a good judge."
Sen. John Thune, the second-ranking GOP leader argued the decision "demonstrated Gorsuch's independence." Thune said he had not had a chance to study the details of the case but said, "The country has obviously changed a lot on that issue. I assume he looked at the facts and the law and he came to that conclusion. When we nominated and confirmed him, that's what we wanted him to do." …
Senate Judiciary Committee Chairman Lindsey Graham said Monday that he's "OK" with the Supreme Court's decision. "That's the ruling of the court. I accept it," the Republican from South Carolina said in a brief interview.
These comments are devoid of reality. In May 2019, the House passed the Equality Act. This statute would have amended Title VII to provide express protections for LGBT individuals. The Senate has taken no action on it. Graham chairs the Judiciary Committee. Cornyn, also on the Judiciary Committee, is the Senate Whip. If they favored this legislative change, they could have taken some action. But they did not hold a hearing or a markup or a vote. They would rather the Court reach a conclusion they would not. And please, don't tell me that Cornyn and Graham thought that the Civil Rights Act provided these protections since 1964. Thune's answer was premised on the great change our country has seen. When Gorsuch ruled, these three no doubt took a sigh of relief.
Josh Hawley is exactly right:
That everybody knows, every honest person knows that the laws in this country today, they are made almost entirely by unelected bureaucrats and courts. They are not made by this body. Why not? Because this body doesn't want to make law, that's why not. Because in order to make law, you have to take a vote. In order to vote, you have to be on the record and to be on the record is to be held accountable and that's what this body fears above all else. This body is terrified about being held accountable for anything on any subject. Can we be surprised that where the legislator fears to tread where the Article I body, this body refuses to do its jobs, courts rush in and bureaucrats too. Are they accountable to the people? No, not at all. Do we have any recourse? Not really. What else do we do? Now we must wait to see what the super legislators will say about our rights in future cases. 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. It's time to reject it.
I suspect congressional Republicans feel the same way about the DACA case. The worst thing that can happen to congressional republicans is if the Court allows Trump to rescind the deferred action policy. Then the ball falls in Congress's lap. And they are petrified of taking a position on difficult topics. Ditto for NFIB v. Sebelius in 2012. There really was no backup plan. Congress is all too happy for the courts, or the administrative state, to make the big decisions.