Justice Gorsuch and the two conservatisms

Religious conservatives were taken aback by the recent Bostock v. Clayton County Supreme Court case, and especially by Neil Gorsuch’s blunt affirmation of the rights of LGBTQ people in the workplace under his “textual” reading of Title VII of the 1964 Civil Rights Act. I see this as an unequivocally good decision, but the “surprise factor” here is worth some discussion. In my view, this came down to a clash of two common manifestations of “conservatism” in the Republican Party today. A look back at history demonstrates how religious conservatives were, once again, outmaneuvered by the “moneyed conservatives.”

Many business-focused conservatives have long had a bone to pick with the courts over a doctrine called Chevron Deference. Neil Gorsuch has had a particular obsession with undoing this judicial precedent his entire career before joining the high court. This and similar pro-business stances in his career put him at the top of the list for elevation to the highest court. My contention is that the religious conservatives who put Donald Trump in power mostly to get their own “dominionist” judges in place were overridden in the selection of Gorsuch as Trump’s first Supreme Court pick. Economic conservatives put a lot of money behind getting this particular judge for this particular “opportunity” that could radically hobble business regulation for decades to come.

The Republican coalition “vectors”

I always start my thinking about these issues with the assumption that political parties “shape-shift” over time. They are non-permanent coalitions of often-competing interest groups and political positions. [1] Rather than draw clear “categorical” ideological boundaries between parties, I find it much more enlightening to see these positions as vectors. Vectors are “forces,” conceptualized as arrows that have two characteristics: direction and magnitude. But like the common application of wind speed and direction vectors on weather maps, the details often get more ephemeral when you try to nail them down. Here are six traditional Republican coalition vectors, generally pulling “rightward”:

Republican coalition vectors

Individual party adherents would put different “magnitudes” or lengths on each arrow depending on their priorities. The top three have traditionally appealed to economic conservatives, while the bottom three have been more the focus of religious conservatives. There are obviously more than six vectors in this party, but six are enough to make my point.

Note that I have crossed out three of these vectors. In less than four years, President Trump has forced party loyalists to publicly disavow these long-standing precepts lest they be tweeted into disgrace. However, the “limit business regulation” arrow remains strong, and thus we come back to “Chevron Deference.”

What is Chevron Deference?

This term comes from the Supreme Court’s Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., decision in 1984. Particularly with the creation of Richard Nixon’s Environmental Protection Agency in 1970, but also in many similar actions since, Congress had evolved a practical, though weak, solution to getting to the bipartisan consensus required to overcome frequent ideological deadlock.

With the EPA as the best and continuing example, several pieces of Congressional legislation, particularly the Clean Air Act of 1963, aimed to achieve cleaner air and water, but were intentionally written very vaguely in order to pass both chambers. These bills gave a large amount of discretion to the EPA administrators to interpret these vague rules both in local terms and subject to current political realities. This allowed Congress to either express support for, or rail against, these administrative actions, depending on campaign needs. If need be, Congress could pass, and has passed, new legislation to clarify their intentions when necessary and politically possible.

In short, Congress got most environmental laws passed only by handing the details of implementation over to the Executive Branch of whatever party was in power to implement. Chevron Deference means that the courts will “defer” to the administrative agency in question on even the most controversial issues, assuming that Congress intentionally gave them this “on the ground” power. The courts will support, under this doctrine, Executive Branch actions that it deems “rational or reasonable.” You can sue if you don’t like the bureaucratic actions of the current party in power, but you will probably lose because of Chevron Deference.

This same approach to resolving Congressional vagueness has been widely applied ever since. For instance, Chevron Deference was applied in a 2002 case to give the Employment Opportunity Commission the power to rule in a case of disability rights where the underlying legislation was disputable. [2] The logic of the Supreme Court was that Congress has the Constitutional authority to clarify its own vague language if it wants to, thus it assumed at the time that the vagueness of the enacted law was intentional.

Is Chevron Deference a good thing or a bad thing?

Chevron Deference first arose in Ronald Reagan’s administration to successfully attempt limit the power of Nixon’s original EPA vision under its controversial “tear it down” administrator Anne Gorsuch, who just happened to be Neil Gorsuch’s late mother. Justice Gorsuch has made no secret of his intense opposition to the doctrine over the years, and indeed, some have seen his 2016 Court of Appeals opinion in Gutierrez-Brizuela v. Lynch, an immigration case, to be his “employment application” for a position on the Supreme Court.

Some commentators on the liberal side of the spectrum have argued that Chevron Deference is a bad thing to have around. Recall that the original case involved a conservative administration successfully trying to dismantle environmental regulation by using the vague language from of Congress against them. The results in the Trump administration for similar agency dismantling have been mixed. Sometimes the civil servants of the agencies have been successful in burying capricious tweets and ideological bullying from President and sometimes not. Often solely through administration bumbling, they have not passed the “rational or reasonable” standard.

Two things have changed since 1984, however. First, Congress have become increasingly unable to ever pass clear, detailed legislation through the traditional committee markup process and negotiation between the two Houses. The ideological battle lines are now poured in concrete. Second, the “Big Money” side of the conservative establishment has realized that they can take advantage of Congressional inaction on many fronts. New laws usually mean tighter restrictions on business and political excess, not looser, ranging from the ever-present environmental challenges to the regulation of “creative” financial deals following the 2008 financial crash. A “textual” reading of vague law, as employed by justices like Neil Gorsuch, means “no law,” with conservative judges taking over power from administrative agencies to stop them from acting to regulate.

Neil Gorsuch became the prime candidate for the first open Supreme Court slot because his intentions to dismantle Chevron Deference and other business regulations were clear, and because there was a heavy and well-funded push from the Federalist Society and other conservative powers behind the scenes. President Trump had zero ideological understanding of the courts coming into office, and specifically yielded to the Federalist Society to pick his judges for him. The “Big Money” desperately wants Chevron Deference and other business regulation gone. That cannot be a good thing.

Stiffing the religious conservatives

Religious conservatives, particularly “dominionist” Evangelicals, have staunchly defended the overtly sacrilegious behavior of President Trump, giving up their longstanding belief that our political leaders should also be models of moral probity. Many of their most prominent preachers have defended this stance primarily because they have seen it as the only way to get the courts to roll back increasing equal protection under the law given to women, minorities and people with “other” sexual preferences and identities.

Justice Gorsuch was put into a bit of a bind with the Bostock LGBTQ rights case. He needs to consistently apply a tight “textual” philosophy for his anti-regulation philosophy to work. That is, he needs to assert that, “the words of the law mean those words and nothing more.” No legislators were thinking about LGBTQ issues (or women for that matter) during the drafting of the 1868 Fourteenth Amendment to the Constitution which granted “equal protection” to “all persons born or naturalized in the United States,” [see Note 3 below] but a “textual” reading says “all persons means all persons.”

Likewise, the text of Title VII of the Civil Rights Acts of 1964 [see Note 4 below] clearly says that you cannot base employment actions based on sex. If you do not fire a woman for marrying someone named Fred, you can’t fire a man for marrying someone named Fred. Thus, Justice Gorsuch needed to choose between his “religious conservative” vectors and his “pro-business” vectors. He chose the side of the economic conservatives. On the other hand, Justices Kavanaugh and Thomas apparently decided, despite that clear language, that their own sexual proclivities were protected while others are not.

Many, perhaps most, “Big Money” economic conservatives in the business world do not share many of these religious “vectors” held by the Evangelicals. The same is likely true for many of the political conservatives in Congress, who have not acted, even when they have held majorities, to aggressively advance the agenda of religious conservatives both back in the last Bush administration as well as the current one. The first priority of the new Trump administration was to slash taxes for the richest people and corporations, and I suggest, to get Neil Gorsuch on the Supreme Court. And just days after the Bostock decision, Justice Gorsuch returned to form in the DACA case by asserting that children of immigrants living in the U.S. do not merit any special protection from draconian deportation policies.

As I have noted in the past, the generic term “Christian” has too often been assigned in the press only to religious conservatives of an Evangelical bent. When I lived in England, I was surprised to learn that many Evangelicals and Mormons were steadfastly in opposition to the Conservative Party, and I met several who were very socialist in the original European sense of the word. In line with my “vector” model above, the U.K. political parties have a different set of coalition “arrows.”

Much of this is historical. The “non-conformist” churches like the Baptists, Salvation Army and Latter-day Saints often found their new adherents in the British “working class.” The class lines have traditionally been strong in the U.K., and these “non-conforming” denominations were long discriminated against by the upper-class members of the state-sponsored Church of England. The class lines remain today in many places. As for their socialist leanings, one Mormon told me, “Of course I am a socialist. Read the words of Jesus!” If only some Supreme Court justices were “textual” in their reading of their own church’s holy book:

“And when was it that we saw you a stranger and welcomed you, or naked and gave you clothing? And when was it that we saw you sick or in prison and visited you?’ And the king will answer them, ‘Truly I tell you, just as you did it to one of the least of these who are members of my family, you did it to me.’” — Matthew 25:38-40


Notes:

  1. For example, the ludicrous claim that the Southern Republican congressmen are in “the Party of Lincoln” has re-emerged with today’s increased racial tensions. On multiple fronts, the Republicans and Democrats are very different parties from what they were in the 1860s.
  2. Chevron U.S.A., Inc. v. Echazabal (2002).
  3. Amendment XIV, Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
  4. From Title VII of the Civil Rights Act of 1964: “It shall be an unlawful employment practice for an employer – (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

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