Something happens to conservative men when they reach the Supreme Court: Kennedy, Roberts, and now Gorsuch. I don’t know if it’s mere proximity to power that corrupts them (the “country club effect”) or whether it’s downright actual corruption. But it happens.
From the very first page of Justice Gorsuch’s opinion yesterday about the 1964 Civil Rights Act and homosexuals/transsexuals: “[T]he limits of the drafters’ imagination supply no reason to ignore the law’s demands.”
So there you have it: “Imagination” must be taken into account when determining the drafters’ intent. Actually, it’s worse than that: The drafters’ lack of imagination must be taken into account, so if they could’ve imagined it and didn’t, their defect in that regard must be turned against them to say that’s what they intended and what the words of the statute mean.
So, in this case, the 1964 drafters no doubt knew about homosexuality, drag queens, and folks who wore the opposite genders’ clothes. Yet they didn’t include them in the protections offered by the 1964 Civil Rights Act. Why? Because it probably (i) didn’t come up, or (ii) the Act wouldn’t have gotten a single vote if they had.
But Gorsuch says you have to look at the plain meaning of the words, as if there is such a thing. There is no “plain meaning” of words. Words always need a context to make sense. Deconstructionism has proven this. Now, I don’t agree with the deconstructionists that there is no truth, but I agree that words are hopelessly slippery things with no set meaning (no “presentness” is how Derrida would refer to it). Therefore, if you have any hope of applying a statute’s meaning, you need to know what the drafters intended.
But this is what Gorsuch says you can’t do. You have to apply the plain meaning of the words, so the plain meaning includes gays and transsexuals. Why does the plain meaning include them? Because Gorsuch says it does. Once “intent” and “context” is tossed out, the “plain meaning” is whatever the Court says because words have no plain meaning. The Court, through a veneer of precedents, can make the statute say whatever it wants it to say. Bigamist can be protected. Heck, even dogs and Martians and cross-dressing Russian spies who get caught can be brought under the “plain meaning” of the 1964 Civil Rights Act and a host of other laws, once all context and intent are tossed out the window.
It is a raw exercise of power.
It’s been this way with the Supreme Court from the beginning. Justice Marshall’s extension of judiciary power, the turn-of-the-century over-reaching of business interests through the Supreme Court, FDR’s ability to turn the Court to his wishes through threats of court packing, the judicial activism on steroids of the Warren Court, Roberts’ abomination “tax reasoning” in the Obamacare case, and now this. The Supreme Court is nothing more than a sheen of respectability on what the federal government does, a foil of sorts: By pretending to be mere objective and dispassionate guardians, they make it seem like there is law and order beyond the reaches of the brute power, even while their paychecks and grandeur come from that Brute Power.
That’s why I’m mad at Gorsuch. I’m not mad at the reasoning. I’m not mad at the precedent. I’m mad because he was supposed to be “one of ours,” just as Roberts and Kennedy were supposed to rule (exercise that brute power) in accordance with conservative principles, but once they got to DC, something happened. I’m just not sure what, but in light of Roberts and Gorsuch, there is zero doubt in mind that something corrupting happens. I’ve long thought it. This is just one more brick in the wall of evidence from the Supreme Court’s opinions over the years that has turned it from “thought” to “fact.”