RUSH: You know, the Supreme Court yesterday, there were four decisions. And I have to tell you, the conservative intelligentsia is beside itself. The people who have supported The Federalist Society and who supported Kavanaugh, who supported Gorsuch, they’re beside themselves. What happened yesterday at the Supreme Court may be the biggest sellout of conservatism by conservative justices in the history of the Supreme Court on four different issues.
One of them was taking the Civil Rights Act of 1964 and throwing LGBTQ into it. Doing that is what is called textualism. It’s a legal term. And let me see if I can explain it. The Civil Rights Act 1964 is passed, and to understand what was intended by the act, you go back to 1964, ’65, and you ask yourself, “What was sex in 1964, ’65? Was it simply an act between a man and a woman? Was there gay sex involved?”
But one thing that everybody agrees on, in fact, in 1964, ’65, the people that wrote the Civil Rights Act had no intention of including transgenders in it because there weren’t any that anybody knew. And yet justices on the United States Supreme Court decided to include LGBTQ people. So now they can’t be fired, they can’t be — it’s gonna be a mess. It’s an absolute mess. And textualism is the legal theory that allows a sitting judge to go ahead and throw something from 2020 into 1965 legislation, even though there is no way the legislation in ’65, the Civil Rights Act, could have possibly included LGBTQ transgenders and all that. It was not an issue, it was not at the forefront, nobody talked about it. It wasn’t a big deal.
So you throw it in under the evolving, living Constitution. Well, that isn’t how conservatives look at the Constitution. The original intent, if you go back and find original intent, then that’s all you’re supposed to do. So my point here, everybody on the right — I’m gonna share with you some excerpts today from a column by Daniel Horowitz at Conservative Review who just nails this and is beside himself with what happened.
And, by the way, he’s right. A Supreme Court decision yesterday upheld sanctuary cities, thanks to conservative votes, upheld the right of cities to be sanctuary and to freeze ICE investigators out of trying to track down illegal immigrants. The liberals did not need to dominate the court for this. They had Gorsuch.
Now, my theory as to why this happened, what in the world happened here? This doesn’t sound like Neil Gorsuch at all from at any point during his hearings to anything he’s written. But if you throw this concept of textualism in there, there’s some people trying to defend it on that basis, that it makes perfect sense to take societal norms and mores of, say, the year 2020 and toss them into legislation from 1964, ’65 under the thinking that it’s only fair, that we now know things we didn’t know then, but that’s not how you — that’s certainly not how conservatives view and judge legislation. You look for the original intent of the people that wrote it, not just legislation, but Supreme Court decisions when you’re looking at precedent.
So I started thinking about the Kavanaugh hearings. And I started thinking, what must that have done to sitting justices? How might that have scared the hell out of them? In other words, what if the harassment of Kavanaugh, the making up of the fact that he was a serial rapist running rape trains at college parties and bars, what if all of that was simply designed to tell conservative justices, “You want this? You want to get this same kind of treatment? Guaran-damn-tee you you can have it if you don’t vote the way we want you to vote.”
So I’m saying, is it possible that there was some intimidation that succeeded in the way Kavanaugh was treated and what was attempted to do with his nomination, was a message in fact being sent to sitting justices, “Hey, if you don’t want your dose of this, don’t make us mad.” I throw it out there as a possibility. I don’t really know if there’s anything to it, but it would make sense to me knowing what we know about how the left operates, how Black Lives Matter operates and how their modus operandi is primarily intimidation and threatened use of force.
Now, counter to the theory, counter to my own theory, it did not change. Kavanaugh went ahead and voted the right way. Kavanaugh was not intimidated. But in his case, he’s already been through it. They already tried to destroy him. They already tried to destroy his career. They already tried to destroy his marriage. They already tried to destroy his record. And he’s still there. He’s on the court. He got confirmed. So he might be sitting there saying, they can’t touch me. They’ve sent their best shot my way and I’ve handled it.
But the others have not had the Black Lives Matter or whatever leftist group you want to cite treatment. And I just wonder if it could have been a factor. “You really think that these judges would compromise their judicial beliefs?” Yeah, folks, I now think a whole lot of stuff is possible I used to not think was. I had no idea how eager to cave so many people supposedly on our side are. No idea.
RUSH: I want to get to this Daniel Horowitz piece — not to be confused with David Horowitz — Daniel Horowitz at the Conservative Review which, if you’re gonna read a conservative publication, Conservative Review may be the one to read. It’s not a bunch of Never Trumpers. These are solid, reliable, incorruptible conservatives. And Daniel Horowitz was mortified over these Supreme Court decisions yesterday.
I’ll give you an example of his writing. “Within 35 minutes today –” this is yesterday — “Within 35 minutes today at 10 a.m. Eastern, what some thought was the most conservative Supreme Court of all time concocted a fundamental right to transgenderism in the context of labor law, erased the Second Amendment, and interfered with a state death penalty case, but declined to interfere with a California law that criminalizes law enforcement cooperation with federal immigration agents.”
That’s the sanctuary city law. They declined to set that law. They declined to interfere with a California law that criminalizes ICE cooperating or local law enforcement cops like San Francisco PD. If San Francisco PD cooperates with ICE, they refused to interfere — there’s a law that says that can’t be done. You can’t sabotage ICE, a local police — they let that stand.
“Taken in totality, the ‘conservative’ legal movement, which has promoted the idea of ‘appointing better judges’ rather than fighting the entire concept of judicial supremacism, has failed miserably. This was its Waterloo. Here is a brief summary of four very important decisions and orders issued,” by the so-called conservative Supreme Court yesterday.
“The justices denied certiorari to gun rights groups in 10 gun cases where states have denied citizens the right to carry arms under any circumstance. Justice Thomas dissented in the denial of cert in the New Jersey right to carry case and was joined by Justice Kavanagh. It takes four justices to agree to hear a case, and it’s not clear which of the others would also have agreed but didn’t sign on to the dissent. Despite the plain meaning of the Constitution, 10 years after Heller, and with circuit splits, the court refuses to act.”
They did not uphold the Second Amendment. They did not enforce, uphold the concept of right to carry. Ten gun cases.
“In U.S. v. California et al., the Supreme Court denied the petition from the Department of Justice to overturn a Ninth Circuit ruling upholding California’s sanctuary law.” This is unbelievable that a conservative majority court would not take the occasion to overturn illegal sanctuary city law. But they upheld it.
“California prohibits local law enforcement from cooperating with federal immigration agents.” So if ICE is coming to down and they want to get a lowdown to where the illegals are there’s a California law that says local cops cannot help ICE. Supreme Court affirmed that. Supreme Court said ICE has no business knowing where illegal immigrants are. A conservative Supreme Court ruled this.
“Only Thomas and Alito would have granted the appeal. In what has become a growing trend of SCOTUS interference with the few remaining capital punishment cases, the justices remanded a Texas capital case because they believe the accused did not have sufficient counsel. … In a 6-3 opinion written by Justice Gorsuch, the court ruled that Title VII of the Civil Right act, which passed in 1964 before anyone could fathom transgenderism, applies to transgenderism and sexual orientation.”
RUSH: All right. One more excerpt from Daniel Horowitz here. “By far, the most devastatingly consequential case of the day was the transgender ‘discrimination’ case – Bostock v. Clayton County. Writing for the majority, Gorsuch claims that when the statute uses the term ‘sex,’ it can apply to sexual orientation and gender identity. ‘An employer who fires an individual merely for being gay or transgender violates Title VII’ of the Civil Rights Act of 1964, concluded Gorsuch. He was joined by the four Democrat appointees, as well as Chief Justice Roberts. Well, it’s good to know that gender and sex are indeed not separate things, as the rainbow jihad lobby has indicated for so many years! But either way this ruling is absurd beyond belief.”
Now, there are competing bits of analysis to explain what Justice Gorsuch was doing here. Believe it or not, there is a school of thought that this is part of a long-term, stealth plan that Gorsuch has to use his kind of awkward definition of textualism to convert the liberals on the court to his way of thinking. And to do that he’s gotta show solidarity with them on some cases and so forth and get credibility.
I’ll never forget — I’ve told you all this. I was fortunate enough to meet Justice Scalia a few times, and I remember asking him one time specifically, “When you get together for the all-hands meeting to discuss first votes on cases, do you ever try to persuade?” He laughed. He said, “No. Waste of time. Not gonna change their minds.” He said, “Are you serious? You’re asking me if I think I can change the minds of liberals?”
I said, “Yeah, I think if anybody could do it, you could.” He said, “Well maybe, but not here. No, it doesn’t happen. It’s not what happens in the Supreme Court. We just write our opinions after determining who wins a case, who loses, we write the opinions, the assents, the dissents, and go on to the next case, don’t try to change their minds.” Gorsuch may be trying to change their minds in a convoluted way.
RUSH: Mr. Snerdley, you know what this means? In the unlikely that event you ever get fired here, all you’ve gotta do is say that you are transgender — late developing, just-realized-it transgender — and you can’t be fired for that. (interruption) You’d rather be fired?
RUSH: Tom in Wyoming, great to have you with us on the EIB Network. Hello.
CALLER: Hello. Mega dittos, Rush. I need you to maybe talk me down ’cause I don’t know why I shouldn’t give up because apparently Kavanaugh and Gorsuch are tag teaming with the liberals to make sure that the Supreme Court stays liberal for the next 30 years. Yes, we got Trump and you keep telling me, “Well, we have to vote Republican because of judges.” Well, we did and it’s lost for the next 30 years. And even if they replace Ruth “Buzzi” Ginsburg, well, it’ll be another Roberts RINO. And even if we get 255 in the House, 55 in the Senate, and Trump gets reelected, they’re not gonna overturn the Civil Rights Act, they’re not gonna turn any of these court decisions over, and the court will just declare them unconstitutional. So why should I continue fighting? I’m having a Appomattox moment.
RUSH: Why should you continue fighting? You think we’ve lost already and that it has escaped our clutches?
CALLER: Well, the Republicans do whatever SCOTUS says, and we now have a permanent liberal majority. It’s just that they’re sort of like hidden. And Roberts pops out or Kavanaugh pops out or Gorsuch pops out when they’re needed for the 5-4 or 6-3 in this case.
RUSH: Well, this actually was a stunning surprise by Gorsuch. Roberts, you’re right. But Roberts has never been a surprise to me. I was told when he became chief, somebody pulled me aside and said, “You think Anthony Kennedy is a problem. Huh-uh. Huh-uh. The guy on that court that loves the Washington Post Style section is the chief.” I said, okay. Gorsuch, this is a shocker, this is a surprise. I can understand you being cynical. Okay. It was Gorsuch’s turn to flip and take the pressure off Kavanaugh having to flip or whatever. What do you think of — I advanced a theory very early on that these guys are really afraid for themselves based on what happened to Kavanaugh during his hearings? Do you think there’s any validity to that?
CALLER: It probably is, but that’s never gonna stop.
RUSH: No, it won’t.
CALLER: They want to be favored by the New York Times and the Washington Post and all these now even worse total communist rags and they want to be, you know, on the front page saying you’re a wonderful person. They don’t resist that lauding. And no matter how good the conservatives say, oh, you’re wonderful, you’re smart, you did the right thing —
CALLER: — they ignore that because that doesn’t —
RUSH: Look. I’m gonna make sure of one thing. You say you’re having your Appomattox moment. I’m gonna make sure that for as long as I live, nobody’s ever gonna take down the statue of you, wherever it is.
RUSH: Okay, folks, that’s it. Fastest three hours in media. So happy to have you along today. Knowing that you are there is a huge deal, is a big upper. I’ll look forward to tomorrow. We’ll be revved and ready for whatever happens between now and then. So see you then.