Gorsuch the Traitor?

After the recent ruling of Bostock v. Clayton County, Georgia, Altitude Express Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (which were consolidated into one case), the religious right feels betrayed by Associate Justice Neil M. Gorsuch. Conservative Republicans have a long history of feeling burned by Republican appointees to the Court. President Eisenhower felt betrayed by Chief Justice Earl Warren. President Nixon felt betrayed by Justice Blackmun. Conservatives, in the 1980s and 1990s, scorned the “traitors” John Paul Stevens and David Souter. Although Sandra Day O’Connor and Anthony Kennedy usually delivered the outcomes desired by conservatives, Justice O’Connor generally sided with opinions upholding Roe and Justice Kennedy wrote many of the opinions expanding and upholding LGBT rights. Justices O’Connor and Kennedy became responsible for the further denigration of American society in the eyes of the religious right.

As a way to prevent the betrayal of Republican appointees to the Court, conservative legal minds founded the Federalist Society in 1982. Although the Federalist Society’s main goal is to advocate for textualist and originalist interpretations of the Constitution, the overarching goal of the society is to put conservative judges in the federal judiciary and conservative justices on the bench of the Court. Right now, five justices (Roberts, Alito, Thomas, Gorsuch, and Kavanaugh) are current or former members of the Federalist Society. The Federalist Society is closely involved in Republican politics. Due to this relationship, a perception that federal judges and justices, who are a members of the Federalist Society, are Republicans has emerged. Furthermore, just as Democrats view conservative justices as Republican puppets, Republicans view Democratic appointees to the Court as puppets for the Democratic Party.

In order to respect and protect the independence of the Supreme Court, the American public needs to view all nine justices as independent jurists. Republicans cannot scorn Republican appointees when the Court rules against the wishes of conservatives. Likewise, Democrats cannot scorn Democratic appointees when the Court rules against the wishes of liberals. Justice Gorsuch should not be viewed as a traitor by the religious right. Further politicization of the Court for short-term political gains should be dissuaded at all costs. Our independent judiciary is one of the institutional guardrails keeping the other branches in check. If the American public continues to view Supreme Court justices as politicians with an “(R)” or “(D)” next to their name, the balance of power between our three branches will be further denigrated. Justice Gorsuch is not a “traitor” for making what he saw as the correct statutory legal decision. After ruling in favor of LGBT workplace protections in these cases, Justice Gorsuch is being compared to Justice Kennedy. Justice Kennedy was equally disliked by conservatives and liberals. Some commentators are predicting that Justice Gorsuch will become equally disliked by conservatives and liberals. Maybe it would be a good thing if all of the justices were equally disliked by conservatives and liberals. By being disliked by both political factions, the justices could be viewed as above politics, which the Court desperately needs in this hyper-polarized times.