Years ago I was privileged to hear Alabama's Judge Roy Moore speak. During that presentation he ran a clip of his cross-examination for "acknowledging God." The man who carried out that cross-examination and Moore's eventual removal for retaining the Ten Commandments in the face of a SCOTUS determination of "unconstitutionality" was William Pryor, currently a front-runner for the next SCOTUS nomination.
The clip made a big impression on me. It was the impression of a man so wedded to the idea that the rules (as he perceived them) must be followed that he was tone-deaf to what I can only call creepiness. Specifically, the creepiness of asking a man if he will continue to acknowledge God and trying to get him in trouble for doing so. One got the odd impression that Pryor thought this was the only way to get a straight answer from Moore--by speaking Moore's language. If Moore was going to call it "acknowledging God" to continue to display the Ten Commandments, then Pryor was going to adopt that language in order to get Moore to admit that he would defy the Supreme Court. Something had gone badly wrong.
Yet when Pryor's name was mooted for a possible SCOTUS nominee, I nonetheless was cautiously optimistic. Why in the world would I feel optimistic at all?
Here was my reasoning: Pryor has said some extremely negative things about Roe v. Wade. Pryor has a strong reputation as a constitutional originalist. He's even supposed to have ended a prayer by saying, "Please, God, no more Souters." The Democrats wouldn't confirm him to the federal bench, and he's on the 11th circuit because of a recess appointment by Bush. Pryor and Moore had even been friends before that incident, and Moore still spoke of him with respect when I heard Moore speak--as a friend who had felt he must take another path. Almost as if the whole incident were some sort of tragedy. So there are real considerations in favor of Pryor as a good, constitutionalist justice.
Recently a friend introduced me to the personality type concept of the "lawful good" character. I may get this wrong, but my impression is that a lawful good guy is the kind of person who, if he were a policeman, would stop the husband speeding to the hospital, take the pregnant wife there in his squad car, and then turn around and give the husband a ticket.
In other words, he's hyper-scrupulous, even annoyingly so, but he's basically on the side of the angels.
I immediately recognized William Pryor. As a lawful good guy, he felt that he had to prosecute Judge Moore. But as a person who understands both constitutional law and right reason, he realizes that Roe v. Wade was an abomination, both morally and legally. And he has said so explicitly.
A person like that, I reasoned, is likely to make a very sharp distinction between what thinks he is required to do as a judge or even prosecutor at a level lower than that of the Supreme Court and what he has the lawful authority to do as a justice of the Supreme Court. His comments at his confirmation hearing in 2003 about Roe v. Wade hardly sound like the words of a man who would hesitate for a moment, if he were actually on SCOTUS, to overturn Roe. And a fortiori, since Obergefell is even more recent a decision and even more of a legal abomination, he should be eager if on the Supreme Court to overturn Obergefell. That's what the Supreme Court has the power to do with its own earlier precedents. It is not bound by them in the same way that a lower court allegedly is bound, or that a "lawful good" guy would be likely to consider himself bound at a lower court level.
Thus far, my reasoning for supporting Pryor and thinking he might make an excellent SCOTUS justice is very similar to that of John Malcolm, who recently defended Pryor's record in National Review.
But now we come to the "other hand." Of the three cases Malcolm discusses, the one that is most worrisome in my opinion is Glenn v. Brumby. Malcolm attempts to argue that here, as well, Pryor (who joined in the majority opinion, though he did not write it) was merely following higher-court precedents. Says Malcolm,
As a lower-federal-court judge, Pryor is required to follow Supreme Court precedent, even if he disagrees with the Supreme Court’s ruling. The outcomes this obligation produces may be undesirable.
But can Glenn v. Brumby really be explained in that way? In Glenn v. Brumby the 11th circuit ruled that discrimination by a governmental employer, on the basis of a man's having a sex change in the midst of his employment and thereafter demanding to be regarded as a woman, is against the 14th amendment. Even though this applies only to government employers, this is a fairly radical conclusion. It makes the equal protection clause treat "transgender" individuals as a specially protected class under the Constitution itself, at least for purposes of governmental employment.
Moreover, on the way to its conclusion concerning the 14th amendment, the ruling interpreted Title VII of the Civil Rights Act as applying to transgender individuals, prohibiting such discrimination as "discrimination on the basis of sex." This, of course, applies much more widely. See here for a summary of the influence of the case.
So was Pryor somehow forced to these radical conclusions by what he (as a "lawful good" guy) would view as his duty to follow SCOTUS precedents? If he really thought that, that weird over-interpretation of his judicial duty is concerning in and of itself.
The reasoning of Glenn strikes me as quite tortured, and all the more tortured when viewed from anything remotely resembling an originalist constitutional interpretation. In brief compass, the reasoning goes approximately like this. (Needless to say, these are not quotes from the actual decision, but you can read that yourself.)
SCOTUS has interpreted the 14th amendment to prohibit discrimination on the basis of sex, so we have to follow that. In the SCOTUS precedents on the subject, the opinions keep referring to gender stereotypes and repeatedly regard laws that differentiate between men and women on the basis of gender stereotypes to be unconstitutional. Moreover, in Price Waterhouse v. Hopkins, the SCOTUS ruled that it violated Title VII for a company to discriminate against a woman for being "macho," because this was requiring her to follow feminine gender stereotypes. People who think that they can turn themselves from men into women are also failing to follow gender stereotypes. Discriminating against them for doing so is thus discriminating against them for a failure to follow gender stereotypes. So therefore, the SCOTUS precedents on sex discrimination and the 14th amendment and on Title VII mean that we have to hold that a government agency's job discrimination against someone for trying to turn himself from a man into a woman and demanding that he be considered a woman is sex discrimination, which is against the 14th amendment (because SCOTUS says governmental sex discrimination is against the 14th amendment). QED.
But the SCOTUS precedents in question were not about the issue of transgenderism at all. Indeed, in the majority of the cases, decided in the 1970's, and in Price Waterhouse, decided in the late 1980's, transgenderism wouldn't even have been on the radar. To take Price Waterhouse to mean that the relevant federal law was, on any originalist construal of the law, meant to cover people who literally claim to be the opposite of their biological sex is a major stretch. In charity alone we shouldn't interpret SCOTUS to be doing anything of the kind, as that would be a rank twisting of Title VII. And, while I hold no particular brief for the originalism of the Supreme Court, there is no need to take it to have been saying that or requiring that. And something similar goes for the various other decisions cited in Glenn requiring that government enactments not assume gender stereotypes (such as that women tend to marry earlier or that a husband's income tends to be more important to a family than the wife's). Feminist those rulings undoubtedly were. Non-originalist (insofar as they pretended to be interpretations of the 14th amendment) they also undoubtedly were. But they certainly did not say that the 14th amendment applies heightened scrutiny to discrimination against transgenders!
The Glenn decision also cites other court decisions at its own federal level (the circuit level) and even at the district court level (lower than itself) that draw similar conclusions about transgenderism from the SCOTUS precedents. But so what? Those courts are (at most) the peers of the 11th circuit, not its legal authorities. Their rulings are not, even on a scrupulous construal, binding upon the 11th circuit! At the most, opinions cite such other opinions as a kind of "strength in numbers" kind of thing: See, we aren't out of the mainstream. Our peers think the precedents and case law mean this as well.
Well, whoop-de-do. But if William Pryor is any sort of originalist, that should not move him, especially if it doesn't come from a court whose rulings he has to follow.
Malcolm doesn't seem to understand this latter point, for he also intones,
The Eleventh Circuit acknowledged that, before Price Waterhouse, several courts had held that anti-discrimination laws did not afford protection to transgendered persons against sex discrimination. But it noted that since then, “federal courts have recognized with near-uniformity” that federal anti-discrimination laws “encompass both the biological differences between men and women, and gender discrimination, that is, discrimination based on a failure to conform to stereotypical gender norms.”
Bandwagon much? There is no particular virtue to unanimity in legal, biological, and moral insanity at the circuit court level. Nor should such unanimity be contrived by any circuit court judge who ought to know better.
Instead, the circuit court should interpret the federal law, not to mention, heaven help us, the Constitution itself, in a more minimal fashion to begin with. Then if SCOTUS decides to insist on a transgender interpretation, that's on their judicial consciences. Instead, Glenn itself added to the body of case law that insisted on an unnecessary application and extension of old SCOTUS precedents to cover transgenderism.
What all of this raises is the specter of a Justice Pryor who has conjured up entirely unnecessary (unnecessary even from a scrupulous legal perspective) precedent-following rules for himself. And if that is the case, then what of Roe and Obergefell? Will he turn out to be the kind of justice who punts to stare decisis about them, even when he is in the coveted seat of Supreme Court justice?
This seems to me an entirely rational worry in the light of Glenn v. Brumby.
Yet even so, I don't know whether that is, in fact, where Pryor is coming from. And if he isn't, he could be crackerjack, given all the other good things he's said. Not just theoretically crackerjack but actually crackerjack.
Unfortunately, that leaves us right where we all too often are when it comes to SCOTUS and Republican nominations: Taking a gamble.
I would prefer if possible to be somewhere better. So if there is someone who is as smart as Pryor, as principled as we're told Pryor is, has said as many good things as Pryor, but doesn't have the liability of having concurred in a case like Glenn, I would prefer to fight for that person to replace the late, great, Antonin Scalia. Can such a person be found? And if found and appointed, can and will he be confirmed?