Good Column

Now I remember why they keep Ross Douthat around.  He's educated, and not a very good writer -- he's adopted the long-form style of unread scholastic journals laying around somewhere -- but a few times a year, this style blends itself with intelligent analysis and produces something worthy of mainstream opinion pages:

The Tempting of Neil Gorsuch

Another conservative justice’s arc bends toward juristocracy.

By Ross Douthat

Opinion Columnist

• June 20, 2020, 2:30 p.m. ET

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 Constitutional amendments were proposed, passed, ratified — and when necessary, repealed.

... [P]olitics 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...

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’s 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 Neil 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.