It might surprise contemporary Americans that for most of our history, what we call “culture war” debates — arguments about rights, social justice, the moral organization of society — were often settled through democratic deliberation, rather than the kind of ruling the Supreme Court just delivered on gay and transgender civil rights. Congress debated and passed laws. State legislatures did the same. Constitutional amendments were proposed, passed, ratified — and when necessary, repealed.
This was true even when the debates in question led to the Civil War. In 1864, while Ulysses Grant and William Sherman prepared their offensives, Abraham Lincoln didn’t demand that the Supreme Court declare slavery unconstitutional. Instead, he pushed the Senate to amend the Constitution to abolish it.
Subsequent battles over Catholicism and public education, women’s suffrage and temperance all had similar legislative goals. The long struggle for civil rights was aided by Brown v. Board of Education and Loving v. Virginia, but the crucial action was in Congress, where the major civil rights laws ultimately passed. The following decade, feminists naturally sought their own constitutional amendment, the Equal Rights Amendment, and its defeat was seen as a milestone in conservatism’s rise.
All of those battles belong to a lost world. Today constitutional amendments have become unimaginable, Congress barely legislates, and the Supreme Court manages our social and cultural debates. Our affirmative action system was designed by Lewis Powell and amended by Sandra Day O’Connor. The boundaries of voting rights and free expression are policed by John Roberts. Our abortion laws reflect the preferences of Anthony Kennedy. And now anti-discrimination law and religious liberty protections will reflect what Neil Gorsuch, author of the new decision, thinks is right and good.
Occasionally, a conservative ruling or Republican appointment threatens to inspire a left-wing revolt against the juristocracy. But the courts have not yet claimed as much power over economic policy as over social policy, and the willingness of Republican appointees to swim leftward on social issues has reassured liberals that judicial power is just a natural extension of meritocracy.
This means it’s been left to religious conservatives — the losers in many of the court’s culture-war decisions, going back to the school prayer rulings after World War II — to make the consistent case against the judicial usurpation of politics.
In making that case, conservatives have championed constrained schools of legal interpretation, originalism and textualism, against a values-driven jurisprudence. A “living constitutionalism” naturally usurps democratic powers, the argument goes, in a way that a jurisprudence bound to textual language or original intent does not.
There was power and plausibility in this view, especially as embodied in the brilliance of the late Antonin Scalia. But it always reflected a slightly naive view of how power works and grows.
For one thing, the law’s ambiguities provide ample space for even a mind that imagines itself constrained — even Scalia’s mind, in some cases — to argue its way into ruling on behalf of its ideological objectives. Meanwhile, politics abhors a power vacuum, and our juristocracy has claimed new powers in part because Congress doesn’t want them, a tendency that originalism is powerless to change.
And the public seems to have accepted this abdication. “The main question in American social life,” blogger Tanner Greer recently observed, “is not, ‘How do we make that happen?’ but, ‘How do we get management to take our side?’” The Supreme Court, clothed in meritocratic authority, seems more like management than Congress.
All of these tendencies converged in Gorsuch’s decision. The goal of his ruling, civil rights protections for gay and transgender Americans, is widely shared; the problem is that Congress has no desire to negotiate over the uncertain implications — for religious liberty, single-sex institutions, transgender athletes and more. So Gorsuch (with Roberts’ support) took the burden on himself, discovering the desired protections in the text of the 1964 Civil Rights Act (an act of sophistry, not interpretation) and then suggesting that all the uncertainties would be worked out in future cases — in other words, by Gorsuch, arbiter of sexual and religious liberties alike.
That a textualist philosophy and a Federalist Society pedigree didn’t restrain him from this self-aggrandizement suggests the conservative legal movement needs either a new theory of its purpose, a new personnel strategy or both.
But outside the right, the welcome afforded Gorsuch’s ruling — which reached the popular outcome and relieved our legislators of a responsibility they didn’t want — is a telling indication of how our system is understood to work. We may officially have three branches of government, but Americans seem to accept that it’s more like 2.25: A presidency that acts unilaterally whenever possible, a high court that checks the White House and settles culture wars, and a Congress that occasionally bestirs itself to pass a budget.
What sort of Republic this is, and whether we will keep it, is for a higher court than Gorsuch’s to decide.