Although the Supreme Court justices chose not to take up two petitions for review submitted…
Supreme Court justices have a history of being unpredictable
Many were surprised at the U.S. Supreme Court ruling regarding gender identity and employment. It was one more occasion to prove that decisions of the high court cannot be predicted on the basis of a given justice’s religion, presumed political leanings or conformity with the thought of the president who appointed her or him.
The recent decision extends the protection of the law to employees of businesses even when these employees are transgender, biologically of one sex but preferring to live, and be recognized as belonging to, the opposite sex, or having same-sex attraction.
Surprise came with the fact that voting to require this protection were Justice Neil Gorsuch and Chief Justice John Roberts. The chief justice came to the court in 2005 by appointment from President George W. Bush. Already a judge in the federal courts, it widely was assumed that Roberts was a conservative, since the president was a Republican, and Roberts was regarded as a political and philosophical conservative.
Bush opposed legal abortion, although his highly regarded wife, Laura Welsh Bush, felt the opposite, according to her own public statements. Finally, Roberts was, and still is, a practicing Catholic. The Catholic Church, of course, taught, and teaches, that abortion is immoral, as is same-gender marriage.
Gorsuch had something of the same pedigree when President Donald Trump nominated him to the court in 2017. Gorsuch was a sitting federal judge with the reputation of being a conservative. Many supposed that he was against abortion on demand and issues relative to same-gender attraction. Gorsuch himself was born and raised a Catholic, attending Catholic schools, but as a young adult, he was married in the Episcopal Church and associated himself with an Episcopal parish in Colorado. (He will not publicly say that he is no longer a Catholic.)
In the recent judgment regarding the legal rights of transgender and homosexual persons, Gorsuch wrote the decision and spoke for the court. This decision disturbed many pro-life advocates, because Gorsuch and Roberts ignored Trump’s publicized views. It worried some that were a full-fledged attack upon the legality of abortion to come before the current Supreme Court, both Roberts and Gorsuch, or either of them individually, might vote to sustain abortion on demand.
Such a possibility cannot be predicted, if for no other reason than court decisions often, if not usually, cannot be forecast with certainty. Indeed, this very much has been the history of the Supreme Court.
When the court dismantled racial segregation beginning in 1954, Justice Hugo M. Black never failed to advance the effort. Labelled a racist throughout most of his life, in his earlier years he had belonged to the Ku Klux Klan.
In 1973, in Roe v. Wade, which legalized abortion, now deceased Justice William E. Brennan, a practicing Catholic appointed by Republican President Dwight D. Eisenhower, voted for the “right to choose.” When Roe was challenged in 1992, Justice Anthony M. Kennedy, another practicing Catholic, seen as a conservative, named by pro-life Republican President Ronald Reagan, concurred in the judgment that kept abortion legal.
Kennedy actually wrote, and supported, the 2015 legalizing same-gender marriage. Another Catholic justice joined him. Four, including Roberts, did not.
Inevitably, Supreme Court justices have dismayed people who thought that their rulings would follow this or that direction based upon the individual justice’s background, personal heritage or religion.
Behind this dismay is the incorrect belief that judges are supposed to take their personal politics or religious views onto the bench with them. Court decisions are not moral pronouncements, or affirmations of any church’s teachings.
Courts interpret and apply the stated law of the land, the Constitution primarily, and acts of Congress. It is this way in the pluralistic American society.
Chickens cannot be counted before they hatch.
Msgr. Owen F. Campion is chaplain for OSV.