The U.S. Supreme Court term that concluded last week was like the chock-full variety pack that leaves some people pleased and some disappointed and too many decrying what they see as the court’s leftward or rightward tilt, as though they are playing a pinball machine. But with so many decisions in one term, it is foolish and blind to draw just one conclusion, let alone an ideological one.
Take Chief Justice John Roberts. In mid-June, he joined the majority in a sweeping 6-3 decision, holding, for the first time, that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex or national origin, also protects gay, lesbian and transgender employees.
U.S. Rep. Josh Hawley, the conservative Republican from Missouri, knows the chief as well as or better than anyone else in Congress, having been one of his law clerks. He knows Roberts has a supple mind. Yet, as NPR’s legal correspondent Nina Totenberg recently reported, he has now disowned Roberts, calling the Title VII case “the end of the conservative legal movement or the conservative legal project as we know it.” For liberals and progressives, this must be high praise.
Compare Hawley to Harvard Law School professor Richard Lazarus, who is an expert on the court’s inner working and also knows Roberts, having been his law school roommate, and who believes Roberts is not a conservative or a liberal but a skilled jurist who acts independently of party or president. Roberts, says Lazarus, has tried to demonstrate that it is worse than useless for presidential candidates to campaign with lists of future court nominees. “I think he hates that,” Lazarus told Totenberg. “I think he’s tried to send a very strong message” about it, in how he votes, argues and decides. He was Hawley’s mentor, but he’s no Hawley.
Neither is President Trump’s first appointee to the court, Denver’s own Neil Gorsuch. It was Gorsuch who wrote the majority opinion in the Title VII case. While he is thought to be a libertarian on some things and sympathetic to religious conservatives on others, he very eloquently got to the point in that case: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
You may know him by the tears of religious conservatives. You should know him and the court by the quality of the reasoning here. Gorsuch succeeded Antonin Scalia, who was ingenious at making an argument fit a desired outcome. Gorsuch is happily clear.
Lazarus’ book “The Rule of Five: Making Climate History at the Supreme Court,” published in March, is about “the most important environmental law case ever decided by the U.S. Supreme Court,” 2007’s Massachusetts v. Environmental Protection Agency. With great insight, he walks the reader through how Roberts swung a victory for the environment when Hawley was his clerk, and in the process finds, not a hero or a villain but a man avidly and smartly making a case on the merits, as all the justices are supposed to do.
If just one American, with all of the usual biases and opinions, found all of the court’s decisions lined up with her views, something would be deeply wrong with the institution. We might even say it had outlived its usefulness. But in the range of its decisions this term and its inability to please everyone, we have to conclude, like it or not, the court is probably working just as it should.