Nevertheless, that is a beginning. The Supreme Court offered a reading of the Civil Rights Act, and the Congress may aptly come back now to assert, as it has in the past, that the ban on discrimination by “sex” would not threaten the existence of all-female colleges such as Smith and Wellesley. In the same way, Congress could make it clear, as Gorsuch noted, that the decision in the Harris case may not apply to locker rooms or bathrooms or all-female teams.
In this way, the political branches may once again, as of old, start narrowing and challenging the decisions of the Court. Nancy Pelosi and Chuck Schumer are not likely to fall in with this project; but that shouldn’t bar Republicans from raising the issues and drawing the lines in the elections coming up. For ordinary folks, unburdened with a degree in law, that issue may be as clear as anything else in sharply marking the differences between the parties right now.
By this time, of course, Republicans may feel so battered that they may have trouble if recovering the spirit—and the nerve—to raise the argument, even when it plays so clearly in their favor. Still, there are senators who take these issues seriously and have not been afraid to plunge into these so-called “value questions.”