The tempting of Neil Gorsuch

All of these tendencies converged in Gorsuch’s decision. The goal of his ruling, civil rights protections for gay and transgender Americans, is widely shared; the problem is that Congress has no desire to negotiate over the uncertain implications — for religious liberty, single-sex institutions, transgender athletes, and more. So Gorsuch (with Roberts’s support) took the burden on himself, discovering the desired protections in the text of the 1964 Civil Rights Act (an act of sophistry, not interpretation) and then suggesting that all the uncertainties would be worked out in future cases — in other words, by Neil Gorsuch, arbiter of sexual and religious liberties alike.

That a textualist philosophy and a Federalist Society pedigree didn’t restrain him from this self-aggrandizement suggests the conservative legal movement needs either a new theory of its purpose, a new personnel strategy, or both.

But outside the right, the welcome afforded Gorsuch’s ruling — which reached the popular outcome, and relieved our legislators of a responsibility they didn’t want — is a telling indication of how our system is understood to work. We may officially have three branches of government, but Americans seem to accept that it’s more like 2.25: A presidency that acts unilaterally whenever possible, a high court that checks the White House and settles culture wars, and a Congress that occasionally bestirs itself to pass a budget.