We Need to Reject Judicial Supremacy Now More Than Ever | Opinion

If ever there were an episode to fortify the convictions of those of us who advocate undergirding textualism in statutory interpretation with a healthy portion of natural law reasoning, it would be Bostock. We defenders of a natural law-based legal order posit that there exist objective standards of judgment derived from human nature itself about which one can test certain propositions as either plausible or implausible, true or untrue, right or wrong. Natural law informed America's Founders as they sought to justify an "appeal to heaven" for the moral rightness of the American experiment. The Founders tapped natural law as the basis for the axiomatic first principles, such as the inherent equality of all men, upon which to construct a morally legitimate government.

Bostock has revealed the limits of a purely proceduralist method of legal interpretation, shorn of its natural law underpinning. A jurisprudence rooted in natural law would have strained to answer the rudimentary question of what actually constitutes a man and a woman for purposes of unjust discrimination. Gorsuch's majority opinion sidesteps that question by assuming that a mere willful assertion of one's sex suffices for what Title VII calls "sex." The majority opinion thus elides, in a bit of circular reasoning, a central reason for the litigation, in the first instance: clarifying the legal and social status of transgenderism.

A case as wrongly decided as Bostock would, in an earlier era, have immediately triggered the equivalent of constitutional "antibodies." Congress would bring forth bills to limit the scope and reach of the holding, along with denouncing the Court's institutional arrogance in smuggling in a determination of what constitutes a man and a woman on the flimsiest of pretext. The president would explain that his administration would ensure that the case be applied only to the two named litigants to the suit, since the holding did not convince him to widen its application.

That is how a healthy republic would deal with a ruling as brazen as Bostock. Alas, our republic is sick. The president responded, cryptically, that the ruling was "powerful." Leading Republicans on Capitol Hill resigned themselves to acceptance—or, in the case of Sen. Josh Hawley (R-MO), wondering how we got here. Where was a plan, or even just the fire, to counter a decision of a rogue court—and, in so doing, marking off the limits to abhorrent judging? Is this not supposed to be among the most basic responsibilities of governing? To borrow from iconic baseball skipper Casey Stengel, "can't anybody here play this game?"

The sickness that ails our experiment in self-government might be understood as undue deference to the idiosyncratic legal prognostications of the federal judiciary—or what constitutional theorists call "judicial supremacy." We propose to restore the original understanding of constitutionality as an ongoing conversation between all three coordinate branches of the federal government. Abraham Lincoln understood the infamous Dred Scott decision as not strictly binding on him as president. As the Great Emancipator famously said in his First Inaugural Address: "[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."

Justice Neil Gorsuch and Chief Justice John
Justice Neil Gorsuch and Chief Justice John Roberts JIM WATSON/AFP via Getty Images

Lincoln argued he would not be obliged to act upon the principle articulated in Dred Scott on other measures coming before his administration—even on issues quite different from a slave litigating over his freedom. The Lincoln administration granted passports to black students wishing to study abroad and patents to black inventors. Passports and patents had been denied on the basis of the holding in Dred Scott that blacks could not be citizens and, according to that logic, they could not carry American passports or receive patents. Lincoln's determination in defying Dred Scott vindicated the Declaration's principle that all men are created equal and taught that pushing back was a legitimate act of political constitutionalism.

Why are our elected representatives and president thus far so afraid to push back against a ruling that Justice Samuel Alito rightly assailed, in his Bostock dissenting opinion, as "pirate textualism?" We think it has to do with the unfortunate mental association, for many, between procedurally countering decisions of the Court and the substantive segregationist positions of the civil rights era. But this mental association is historically myopic, as Lincoln's statesmanship reminds us; and Brown v. Board of Education's basic proposition of upholding the principle of racial equality is infinitely sounder than the metaphysical sidestep of Bostock, in any event.

Conservatives have become accustomed to treating the decisions of the Supreme Court as final. And in cases of ultimate import, the stakes are so high. But this, at root, is an iatrogenic problem. It is only because so many conservatives mistakenly believe the modest judicial review of Marbury v. Madison means the soft despotism of judicial supremacy that this understanding pervades popular thought about the role of the courts in settling contested legal issues. A ruling is only as strong as the reasoning that supports it.

We ask our conservative brethren to embrace an understanding of the decisions of the Court as final if they are right—not right because they are final. The logic of the separation of powers and constitutionalism entrusts great power to the other branches to push back on questionable determinations made at the highest levels. We are thankful the Founders envisioned a structural "Break Glass In Case of Emergency" provision. Bostock provides an excellent opportunity to show Casey Stengel that indeed there are still some who can play this game.

Garrett Snedeker is the deputy director of the James Wilson Institute on Natural Rights and the American Founding and a J.D. student at the Antonin Scalia Law School. Josh Hammer is Newsweek opinion editor, a syndicated columnist, and of counsel at First Liberty Institute.

The views expressed in this article are the writers' own.