Saturday, June 20, 2020

After Bostock, Was It All Worth It?

It's been interesting to watch conservative reactions to the Bostock decision (holding that Title VII's prohibition on sex discrimination encompasses anti-gay and anti-trans discrimination, because that discrimination necessarily is also "because of" sex). Some of the usual suspects have been relatively muted -- likely because the outcome the Court reached is actually overwhelmingly popular. But there certainly are some on the right who are very upset. Josh Blackman collects anonymous examples here. Right-wing commentator Josh Hammer urges conservative judges to abandon procedural legal reasoning entirely in favor of an unabashed substantive commitment to social conservative principlesSenator Josh Hawley claimed the decision represents "the end of the conservative legal movement."

It's more than just Joshes, of course. And the theme of this critique is, as Hawley alludes to, the question of whether it was all worth it. The claim is that social conservatives, at least, have been holding their noses and voting Republican for years because "the judiciary". But if the conservative judiciary gives them results like these, is the bargain really worth it? The murmur is that after Bostock, the jig is up, and conservatives will no longer come out to support a GOP whose judges have betrayed them.

If you're a liberal reading this, it's rather striking. The undisguised insistence that judges should vote in alignment with conservative policy objections (up to and including explicitly disavowing neutral legal proceduralism!) is amazing to see -- less because of the content and more because it's being said out loud. But more incredible is the idea that this Supreme Court has represented anything less than a massive triumph for contentious right-wing causes. The Court of Citizens United, of Trump v. Hawaii, of Hobby Lobby, of Janus, of Masterpiece Cakeshop -- none of that registers? Is it really everything or nothing?

I, of course, heartily encourage social conservatives to adopt this reasoning and decide its not at all worth it. Rise up by sitting down, and showing the Republican Party what's what! But that's because it's obviously self-serving for me: the result of social conservatives staying home and fuming because the Supreme Court only backs them 80% of the time instead of 100% of the time is, in five or ten years, a Supreme Court that backs them 40% of the time.

Indeed, the most important lesson liberals could learn from watching, agape, the social conservative reaction is "if this strategy looks ridiculous to you coming from the right, it's equally farcical when it's threatened from the left." You don't win by staying home, and you're not playing hardball when you insist on everything.

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