The Volokh Conspiracy

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Volokh Conspiracy

Many Republicans quietly breathed a sigh of relief after Bostock was decided

Hawley is right: Congress is "terrified about being held accountable for anything on any subject"


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.

NEXT: June 15, 2020: Blue Monday at the Supreme Court

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  1. Josh, will you please go take a nap or something?

  2. Congress Republicans are too happy for the courts, or the administrative state, to make the big decisions.


  3. I think Blackman gets this one right. Both DACA and LGBT rights are wedge issues for elected Republicans, who are more than happy to let the courts decide them so they don't have to take a stand.

    1. And for constitutional issues (like abortion) Republicans are happier to let the courts decide them so they have the freedom to take a meaningless stand.

    2. They're wedge issues for Democrats too.

      Democrats had the opportunity to change this for years, and did nothing.

      1. By definition, they are not wedge issues for Democrats because Democrats support both in large numbers. Democrats failed to get laws passed because Republicans are split and either 1) the Senate filibuster or 2) the Hastert rule in the House (a majority of the majority must support a bill to bring it up to a vote).

        1. This misunderstands the Democratic Caucus. It's quite divided between..

          1. A rich white socially liberal elite block
          2. An African American block
          3. A residual union/poor block

          Only one of these bloc groups really supports this sort of LGTB equality. The other two either don't really, or are ambivilent at best.

          There's a reason Prop 8 passed in California.

          1. In 2008, marriage equality was a wedge issue for Democrats. But in a sea change that happened with unprecedented speed, marriage equality became a wedge issue for Republicans by the time Obergefell was handed down.

            1. Armchair Lawyer is still right though, only the white elite block of the Dems actually supports LGTB equality.
              The Republicans now have a similar division with the business conservatives, corporatists and neocons supporting LGTB, and populist and religious GOP voters holding opinions in line with the DNC's African American Block.

              LGTB issues are more of a haute bourgeoisie/proletariat class divide than right/left or DNC/GOP.

              1. Although black support for marriage equality lags white support, support for marriage equality is above 50% in all racial groups.

                1. Expressed support.
                  Not actual support.

                  1. Yep, most people don't really give a shit about stuff like this just like very few people suddenly found a true interest in all this BLM business or the Cultural Revolution on a true philosophical level. Its all just mass crowd hysteria. If our media was oriented in a certain direction KKK hoods would be all the rage about now.

                    1. Mass crowd hysteria, well founded fear of being destroyed if a decade hence somebody discovered you'd expressed the wrong opinion...

                    2. Brett -- the folks I always thought got a bad deal were those who joined the Communist Party during WW-II when the Soviets purportedly were our friends and then got screwed a decade later for having been in the "CP" back then.

                      Amos -- look into the rise & fall of the Klan in the 1920's -- the History Channel did a good special on it a decade or so back. It was anti-Catholic/anti-immigrant and centered in the North. And then as suddenly as it appeared, it was gone with everyone involved shunned. But they did massive marches on Washington, which are spooky because the streets are where they are now, but most of the familiar buildings aren't.

          2. The rich White socially leftist block is going to be split on the issue of women's sports. It'll be L v. T with no middle ground.

  4. I think Hawley is right in a lot of ways, but it seems strange to criticize Congress for not passing enough laws, when so much of the Republican party's energy is directed at reducing the scope of federal legislation, fighting legislation passed by Democrats (like Obamacare), and complaining about there being too many laws.

    It's also really strange to hear a sitting Senator say "Do we have any recourse? Not really." What has he done? Someone in another thread noted that he could have introduced legislation reversing this decision, yesterday. Has he done that yet? This is a statutory case. There are no "super legislators" only legislators like Hawley. And instead of leading and making the case against the substantive result (as opposed to how we got there, through "textualism" gone awry), he talks about the fucking "bargain that has been offered to religious conservatives".

    What's the bargain, exactly? That they won't argue for religious conservative positions, but will get them through interpretive methodologies? It's embarrassing that the only thing supporting interpretive methodologies is a lie. If he can't support textualism and originalism on their own grounds--and they are unimpeachable on those grounds--then he's a charlatan and certainly no leader.

    And if "religious conservatives" reject the bargain, then what? They will ultimately still have to convince people who currently disagree with them to change positions. And what will that take? Leadership from people like him in the Senate. Making arguments that appeal to people who don't already agree that their God mandates the result he advocates for. There are non religious arguments against anti-discrimination laws. He should make them.

    1. I agree somewhat but Hawley didn't object directly to the policy result of this decision, but only to what he views as a legislative action taken by the court.

      He's pretty clear about what he says the bargain is. Tax cuts for big corporations, bad trade deals that sell the country out to China, and open borders immigration that harms the working class. It's not anything about interpretive methodologies that you mention.

      To the extent Hawley did express concern about the policy result of the decision, it was only as to the as yet uncertain impacts on religious liberty, which the court noted they will deign to decide at some future date. It does feel somewhat like a super legislature.

      And he made no explicitly religious argument as you imply. Just a basically secular argument about religious liberty generally.

      I think I agree with you though that it could be just liberty. Liberty and freedom of association would encompass religious motivations as well as non religious.

    2. "he could have introduced legislation reversing this decision, yesterday"

      No chance of passing. So why bother? The speech accomplished nothing either but at least it didn't waste staff time.

      1. "No chance of passing."

        I agree that the chances of it passing are zero if he doesn't introduce the legislation. Introduction of legislation is an early step in the persuasion process. He's in the Senate, so he'd probably even get heard.

    3. "What’s the bargain, exactly?"

      The bargain was that the religious conservatives (also cultural conservatives generally) would stay with the Republican party in the face of having a morally and ethically challenged President in exchange for getting conservative judges and justices.

      This may hurt Trump's electoral chances if cultural conservatives stay home. I doubt that they will based on this one thing because the alternative is so distasteful to them. But if they thought they were on a track to overturn or weaken Roe then I'm sure they are by now disabused of that notion.

      1. "But if they thought they were on a track to overturn or weaken Roe then I’m sure they are by now disabused of that notion."

        Why? What did Gorsuch do or say that informs your views on what he thinks of Roe, or what he might do with a constitutional case on abortion?

        1. You said yourself that Gorsuch basically killed textualism. He not only voted with the majority he wrote the opinion. He abandoned (tortured) it in order to update a statute. Killing Roe would require a textualist/originalist approach. Roe is so weak from that approach that before this one might have expected something to happen. Bostock is a guppy to Roe's whale so he won't touch it. FWIW it probably doesn't matter because Roberts will keep it with stare decisis but really legacy.

    4. "I think Hawley is right in a lot of ways, but it seems strange to criticize Congress for not passing enough laws, when so much of the Republican party’s energy is directed at reducing the scope of federal legislation, fighting legislation passed by Democrats (like Obamacare), and complaining about there being too many laws."

      They line up behind Mitch because it's way less effort to just be reflexively against doing anything than it is to actually build working systems to achieve your goals. Wouldn't want to get their hands dirty or anything doing actual work. The base would rather stay "pure" than consider working with those darn libruls to make a federal government that works well for all its citizens.

  5. Of course. The Republican "establishment" doesn't care about cultural issues at all. Just tax cuts and Federal Reserve giving free money to Wall Street.

    1. Well, they do care about restricting abortions, denying equal protection, and enshrining Christianity, but only to the extent it helps them get enough votes to stay in office. Fiscal conservativism isn't enough to win over the masses, so they have to ally with social conservativism too or else we'd have three political parties and Democrats would be the plurality. As human beings, the establishment GOP is educated and worldly enough to know social progress is not a bad thing. (Well, at least we can say that about most of the Senate, the GOP in the house is a lower bar.)
      After all, how else could multiple-divorcee and affair-hush-money-paying Trump win the evangelical vote if politicians weren't allowed to say one thing and do another? I wish we could find out how many abortions he has sponsored. Surprisingly, his undocumented immigrant Mar a Lago staff members said he treated them mostly well, rather than the "rapists and thugs" that he says they are.
      It's all pandering to the lowest common denominator of America, rather than leading by example.

      1. "Well, they do care about restricting abortions, denying equal protection, and enshrining Christianity"

        Well, they'll talk the talk. but when it turns out doing these things in real life just gets you successfully sued, they suddenly lose interest in actually doing them and change the subject to what those wacky Democrats are up to. Did you know they plan to make every Christian take on a same-sex spouse if they get control of Congress? And also abortions will be mandatory! and they'll take away your American flags, too. (Now that they got NASCAR to ban the Confederate battle flags, they'll be coming after ol' glory any minute now...)

    2. "The Republican “establishment” doesn’t care about cultural issues at all. "

      Correct. Because their rich donors don't.

      1. They're going to learn the hard way that a culturally rotted America won't allow them to make and keep their money in the long run.

  6. The only thing I'd add is that they're not just happy to have the courts take the heat for deciding this, they're happy with how the courts decided it.

    The Republican Party, at the federal level, and in many states, is a bait and switch operation. Something I think conservatives are finally beginning to figure out. And Trump May have been the last effort to reform it before tearing the whole thing down and salting the earth it stood on.

    1. Yes, all the Republican Party establishment cares about is tax cuts, deregulation, and free printed money to Wall Street. The establishment is led by "country club" Republicans, who couldn't care less about cultural issues.

      Trump may have been a last effort, but he ruined it by aligning himself with swamp creatures like Mnuchin and Kudlow.

      1. Don't you mean (((Mnuchin))) and (((Kudlow)))?

        1. What do the triple parentheses signify?

          1. He is alleging without evidence that you are a Jew hater. Some racists a few years back started identifying Jews with those.

            Both of those men are Jewish. [Which was a surprise to Jewish me but wikipedia says so]

            1. If, as I assume, Aktenberg78 is the successor screen name of RestoreWesternHegemony, my evidence is his admitted animosity for insufficiently right wing Jews. If he isn't the same commenter, then I owe him an apology, though the similarity is remarkable.

            2. Interesting, didn't know either were Jewish either. Was more signifying that they are ex-investment bankers who care about nothing other than Wall Street. If he wants to infer that's about Judaism, let him have it.

              1. If you aren't RestoreWesternHegemony I apologize.

                Are you?

                1. No. I'm Alan Tenberg

                    1. No worries.

                  1. Wonderful. How does being Alan Tenberg establish that you aren't, and have never been, RestoreWesternHegemony?

            3. "Both of those men are Jewish."

              Wikipedia misled you on this, BobfromOhio. Kudlow, like the late unlamented right-winger Robert Novak (known by some of his contemporaries as the Prince of Darkness, and no friend of Israel), and Bob Barr's father, was born into a Jewish family, but converted to Catholicism. Mnuchen remains at least nominally Jewish notwithstanding his most recent wife, and along with Gary Cohen when Trump said there were "fine" people on both sides in Charlottesville.

              (Has anyone ever been able to identify by name or organization any "fine" people on the neo-Nazi, white supremacist side? Or are they like those Catholic Cardinals whose names the Pope keeps en pecho, that is in his heart , because they would be in danger from repressive regimes, like the Chinese? The Charlottesville "fine" people never identified by Trump, but their names guarded by Trump for their safety?)

              1. Needless to say, the question isn't whether they're Jewish per Halacha, but whether they're Jewish by the metrics of those who would hold such Jewishness against them. By the latter standard, both are unambiguously Jewish.

                1. Did these mysterious, unidentified antisemites name you as their spokesperson? Or have you designated yourself to that role, speaking for these poor, oppressed people who cannot or perhaps will not willingly speak for themselves?

    2. "The Republican Party, at the federal level, and in many states, is a bait and switch operation. Something I think conservatives are finally beginning to figure out. And Trump May have been the last effort to reform it before tearing the whole thing down and salting the earth it stood on."

      Gosh, putting an utter incompetent in charge of it didn't make it better? who'd'a thunk such a thing?
      Republicans have a tendency to put incompetents into every phase of the federal government, so they can run on a platform of how incompetently the federal government is managed. They object bitterly if anyone competent is put into a federal office.

  7. So the Republicans are control freaks who like to interfere and micromanage private business, under the guise of 'rights' as well. News at 11.

    1. "So the Republicans are control freaks who like to interfere and micromanage private business, under the guise of ‘rights’ as well"

      Correct observation. See the crybaby-in-chief trying to regulate Big Tech because they won't just let him get away with lying as he sees fit.

  8. Bingo! And that is why Roberts will roll back Roe v Wade while preserving the right to have an abortion in cases of rape and incest. So Republicans in Florida and Texas and Georgia would attempt to outlaw all abortions and force women to have rape babies and then suburban moms would flip out and vote Democrat. Roberts would be saving Republicans from their worst impulses.

  9. (Can we please drop the never-ending fan fiction that Trump would not leave office if he loses?)

    As soon as reporters start asking democrats if they will actually accept the results of THIS election - - - - - - -

    1. Exactly. Before the election, Trump makes rumblings about not accepting a loss as a fair election, and Democrats mock him. After, they switch sides.

      That's all you need to know about the clownish seeking of power from both sides.

      It's a joke. It's all a joke. Mother forgive me.

    2. "The Democratic party has had it with the US having competitive elections"

      Depends: Will it actually be run fairly? Or will we have a crapshow of mile-long lines of people waiting to vote on machines that may or may not be working correctly? I which of these choices I prefer, and I know that prominent Republicans don't share my preference. Starting at the top where you have a guy who opposes vote-by-mail because he just KNOWS how corrupt it is because he knows how corrupt it would be if he was allowed to run it.

  10. The Equality Act would go much farther than SCOTUS just did. In particular, the Equality Act would require that "transwomen" be allowed in women's bathrooms and locker rooms, and that they be allowed to compete as women in sports. The recent ruling did not decide any of those questions.

    The JK Rowling op-ed that EV recently linked shows why these are bad ideas. And states that address these practices, especially transpeople in women's sports, are mostly forbidding them. I dare say that the Equality Act goes even farther than Obergefell in pre-empting subject matters that rightfully belong to each state to decide.

  11. To those who believe he read the opinion:

    Trump University offers flexible financing options for the Fall 2020 semester.

    To those who know better but are willing to say they believe it:

    Trump University has faculty openings.

    1. Did you read it?

      1. No. Did I say I did?

        1. Why would you think that anyone here would think that Trump read it? Almost no one outside of committed legal nerds has read it, and that includes people commenting here at length about it. I did read it but unlike Trump and probably you I have a lot of time on my hands.

          1. Why would you think that anyone here would think that Trump read it?

            Umm... because he said he read it?

            I realize this president lies so routinely that only a fool would believe a word he says -- which was my point -- but that doesn't mean we should allow Trumpian level presidential dishonesty to become normalized. And don't even think about whatabouting this. The depth, breadth, and shamelessness of Trump's lies are unprecedented.

  12. Man, those quotes from Thune et al are cringe inducing. Show some backbone and stand up for your base, not your rich donors, for once.

    1. They'll learn their lessons when their "base," people like me, stay at home in November. And I live in a swing state they can't afford to lose.

      1. They won't care so long as they keep their own seats. Being a senator is quite cushy, being in the minority rather than the majority doesn't bother most of them too much.

        1. It's likely to bother more that a few of them in the long run; The Democratic party has had it with the US having competitive elections, 2016 was a horrible shock to them. I don't think they mean to let that happen again, the next time the train is at their station they're getting off.

          Partisan entrenchment will be the agenda the next time they control things, and I doubt they'll have any scruples about the means.

          1. "The Democratic party has had it with the US having competitive elections"

            Yet, oddly, it's the other team that is actively trying to disenfranchise American voters.

        2. They won't. The next move will be to legalize everyone here illegally, and to import tens of millions of new third world voters. They will also pass voting rules that make it impossible for Democrats to lose.

          The country is lost. Most of us just don't see it yet.

          1. I'm trying to figure out if your really that racist or just a troll.

  13. As long as both Congress and the President refuse to address the fact that the Supreme Court has long overstepped its bounds, the Court will continue to expand its power.

    The court is no longer a judicial branch, it is a super-legislature.

    Congress needs to start impeaching.

  14. The President acted like he wouldn't accept the citizenship question case.

  15. " President Trump said, "They've ruled, I've read the decision[...]"

    This seems unlikely. If they'd wanted him to read it, they'd have had to insert his name one every page to keep him reading. I'm pretty sure someone explained it to him, but I have my doubts hed understood what they were telling him.

  16. A republic depends on legislatures legislating. A cowardly legislature is the beginning of the end of a republic. Who would sigh with relief at the republic’s demise?

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