How conservatives misjudge the Supreme Court

Six of the nine Supreme Court justices have been appointed by Republicans, yet red states are now being prevented by federal courts from keeping boys out of girls' bathrooms. What was the point of the generation-long battle for control of the high court?

A three-judge panel for the Seventh Circuit Court of Appeals in August upheld a lower court ruling forcing the Metropolitan School District of Martinsville, Indiana, to allow people to enter the school bathrooms of their choice, not the one that matches their sex. At issue was a female student at John R. Wooden Middle School who believed she was a male and wanted to be granted access to the male bathrooms and male sports teams and be referred to in school as a male. The ruling would obviously apply to both genders in both directions and is binding in Indiana, Illinois, and Wisconsin.

Gorsuch, Barrett, and Kavanaugh cannot hold a candle to the jurisprudence of Clarence Thomas and Samuel Alito.

The Seventh Circuit affirmed a lower court ruling that gender-separate bathrooms violate Title IX of the Education Amendments Act of 1972 and the Equal Protection Clause of the 14th Amendment written in 1867 because, you know, legal equality for freed black slaves somehow translates into women being able to demand that the state treat them like men.

Judge Dianne Wood, in her opinion on behalf of the Seventh Circuit, cited Justice Neil Gorsuch’s absurd opinion in Bostock v. Clayton County that incorporated “sexual orientation” and “gender identity” into the employment nondiscrimination dictates of Title VII of the Civil Rights Act of 1964. Not unreasonably, Wood concluded that if the alleged conservative justice was going to include transgenderism in a 1964 law, then why not also read it into the Education Amendments Act of 1972?

Creating a right to switch-hit in bathrooms and stipulating that regulating gender-separate bathrooms is beyond the scope of state authority are absurd, especially after the court’s ruling in Dobbs v. Jackson Women’s Health Organization restored the “deeply rooted in history and tradition” standard for manufacturing an unenumerated fundamental right. Moreover, there is already a circuit split, with the Eleventh Circuit having reached a different decision on gender-split bathrooms in 2022.

As such, it is downright appalling that an allegedly conservative Supreme Court would once again allow the transgender rainbow jihad to run roughshod over red-state policies indefinitely without hearing the appeal. Even in Judge Wood’s opinion, she predicted that “we assume that at some point the Supreme Court will step in with more guidance than it has furnished so far.”

Well, in fact, the Republican appointees — namely Justices Amy Coney Barrett and Brett Kavanaugh — want to wash their hands of all controversial questions, thereby allowing rogue lower court opinions to stand.

Donald Trump observed recently that Democratic judges “go out of their way to hurt you,” while Republican judges “go out of their way to show they’re not biased." Except it is his appointees who have continuously allowed lower court opinions to stand. Gorsuch, Barrett, and Kavanaugh cannot hold a candle to the jurisprudence of Clarence Thomas and Samuel Alito.

Barrett and Kavanaugh have consistently allowed the lower courts to demand that red states promote a right to transgenderism while also allowing the states to regulate our bodily autonomy during the COVID-19 pandemic. Gorsuch, for his part, has been much better than the other two on COVID and in his willingness to hear appeals on other cases, but his Bostock decision was a disaster.

As I warned in 2020 at the time of Bostock, “It's not even a jump to apply this ruling to that law (1972 Education Amendments Act); it’s a logical outgrowth. All separate-gender school activities and private dressing rooms are out the window because the 1972 law, which liberals already felt included transgenderism, will now be so interpreted.”

In December, Gorsuch and Barrett, along with Chief Justice John Roberts, joined the court’s three liberals in denying an appeal from those challenging a wicked Washington state law banning counseling for kids suffering from gender dysphoria. Again, the justices ignored a critical issue despite a clear circuit split. A month earlier, Kavanaugh and Barrett denied Florida’s appeal after lower courts, in a trend across the nation, enjoined its law banning drag shows for minors.

At the same time some of Trump’s appointees have allowed the creation of a right to transgenderism, they also have denied basic bodily autonomy rights. In November, Kavanaugh and Barrett joined with the liberal justices and denied an appeal from New Jersey nurses who were forced to get the dangerous COVID jab or lose their jobs in state hospitals. In 2021, this same pair denied emergency injunctive relief to New York health care workers who were being deprived of a religious liberty exemption from the state’s vaccine mandate. And of course, Kavanaugh crossed over to join the five liberals in upholding the Biden health care worker vaccine mandate in January 2022.

Just this week, Barrett joined with the liberals to uphold the Biden administration’s ability to work with the cartels to clear the barriers that Texas has erected along the border with Mexico. The Supreme Court has now sided with the Biden administration in 11 of its 14 emergency applications for relief, often reversing the conservative Fifth Circuit Court of Appeals.

As for Barrett, given her support for the Illinois lockdown on the Seventh Circuit, it’s difficult not to conclude that she believes a state has the right to lock down its citizens and mandate poison in their bodies but lacks the right to stop a foreign invasion.

The Dobbs decision has largely overshadowed all these other cases, including Kavanaugh’s opinion on redistricting that might well tip the House to the Democrats. In the coming years, however, it will become clear that not only is the Supreme Court a net liability at the federal level, but it is also preventing red states from being red.

Perhaps there might be a bipartisan opportunity to limit the jurisdiction and scope of the federal judiciary after all.

Oh, and if the primary strategy to win this election is for the Supreme Court to block Trump’s convictions, you might want to consider a contingency plan.