“I do want to be clear,” Supreme Court nominee Amy Coney Barrett said during her Senate confirmation hearing, “that I have never discriminated on the basis of sexual preference and would not ever discriminate on the basis of sexual preference.”

A laudable stand, one might think. But some don’t. Self-designated representatives of the LGBTQ community immediately escorted Barrett to the pillory.  “I did not choose to be gay,” thundered USA Today columnist Steven Petrow. “Ditto for the millions of LGBTQ people in this country who find ‘sexual preference’ highly charged and who were shocked by Barrett’s use of the term.”

Barrett quickly apologized: “I certainly didn’t mean and would never mean to use a term that would cause any offense to the LGBTQ community.”

As a member of that community, I wish she hadn’t apologized.

Not just because “preference” is logically a subsidiary trait to “orientation,” although that’s true. If we are, as many believe, biologically hard-wired to prefer romantic and sexual relationships of certain types, well, OF COURSE we prefer such relationships to others.

Nor only because some LGBTQ persons believe that their romantic/sexual preferences are shaped by environment as well as by heredity (I’m agnostic on the subject), although that’s true as well.

Barrett should not have apologized because the position implied by her use of the word “preference” is the only position compatible with the rights and freedoms most of us would want her to defend and preserve from a bench on the Supreme Court.

Attempts to erase the idea of “preference” from discussions of sexual orientation and gender identity are attempts to deny and suppress the free will, choice, and agency of the very people who constitute “the LGBTQ community.”

Neither I nor my many friends in that community deserve to be treated as helpless slaves to a biological equivalent of the old religious doctrine of predestination — “the elect” to our supporters, “the defective” to those who loathe us, powerless pawns whose thoughts and actions affect nothing.

What would the point of “LGBTQ Pride” be to a herd of mindless robots marching blindly down the Pride Day parade route in accordance with programs we own no authorship of? What rights could such machines claim to possess? Without free will, what actions of theirs could be judged?

The New Puritans of progressivism want us to think of ourselves as such robots. That would make us easier to order around for political gain. Real people with rights, reasons, and preferences — people who choose our own relationships and craft our own personalities, of whatever type and on whatever grounds we deem important — frighten, enrage, and confuse them. I hope Amy Coney Barrett doesn’t see us the way they do.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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“The Supreme Court,” said Tucker Carlson on the October 12 edition of his Fox talk show, “exists only to determine whether the laws that our politicians write are consistent with the Constitution of the United States. That’s why we have a Supreme Court. It’s the only reason we have it.”

Perhaps Tucker should keep a copy of the Constitution, maybe even a history book or two, on his desk (or on the table in his show’s writers’ room) to help him avoid saying stupid things like that in public.

“Judicial review” of laws for the purpose of determining their constitutionality or unconstitutionality is far from the “only” reason for the Court’s existence. In fact, the practice isn’t even mentioned in the Constitution itself, and wasn’t firmly established until 1803 when Chief Justice John Marshall asserted (in Marbury v. Madison) that “a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.”

Per Article III of the Constitution, the Supreme Court’s power extends to “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority,” as well as to cases involving ambassadors and diplomats, maritime cases, cases to which the US is a party, suits between states, suits between citizens of different states,  suits involving foreign states, etc.

The Court has a pretty big bailiwick, covering various kinds of litigation that turns on applications of statute or treaty, as well as appeals of supposed judicial error in lower courts, rather than on questions of constitutionality per se.

But where constitutionality IS concerned, it’s far from obvious that the Court has a very good record vis a vis “judicial review.”

Between 1857 and 1954, for example, the Court went from black people having “no rights which the white man was bound to respect” (Dred Scott v. Sandford) to “separate but equal” (Plessy v. Ferguson) to “separate educational facilities are inherently unequal” (Brown v. Board of Education). While the 14th Amendment did come into play between the first two of those three cases, it’s pretty clear that each turned more on the popular sentiments of the times than on the text or meaning of the Constitution.

Trusting the Supreme Court to defend our rights via “judicial review” is a fool’s game. We need look no further for evidence of that than the grandstanding and political wheedling that accompanies every vacancy on the Court. Republicans and Democrats both demand justices who will find a way, some way, any way, to shoehorn their policy goals INTO the Constitution, not justices who will apply the law without passion or prejudice.

The Cult of the Court is a shiny thing, but in the end the Court is just a court, and its members are just politicians in black dresses. The best we can hope for from them is that they’ll give due attention to their real jobs and resist the political temptations of “judicial review.”

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY

“I have instructed my representatives to stop negotiating until after the election,” President Donald Trump announced (via tweet) on October 6. “[I]mmediately after I win, we will pass a major Stimulus Bill …”

Trump reversed himself three days later, but House Majority leader Nancy Pelosi (D-CA) isn’t having any of it. On October 10, she described the administration’s current “COVID-19 relief” proposal as “one step forward, two steps back.”

Both major political parties would have you believe that the devil is in the details — that they’re both fighting hard for particular priorities and just can’t come to a meeting of the minds.

In reality, this is all about next month’s elections, which will decide control of the White House for the next four years, and possibly of both houses of Congress for the next two.

“There is no limit to the amount of good you can do,” President Ronald Reagan once said, “if you don’t care who gets the credit.”

Donald Trump, Nancy Pelosi, Mitch McConnell, and (in the background) Democratic presidential nominee Joe Biden care a great deal about who gets the credit.

Donald Trump would love nothing better than to put a big fat “stimulus” check, signed “Donald J. Trump,” in your mailbox before you cast your vote. Nancy Pelosi’s signature wouldn’t accompany his.

Pelosi’s more expansive proposal focuses more on extending “enhanced” unemployment benefits, as well as new funding for Democratic Party constituencies in public education and local government — “relief” that might get her party at least a little credit.

Neither side is likely to give an inch until after November 3. Maybe not until after January 20 of next year if the White House changes hands.

I can’t say I’m unhappy about that. Politicians throwing “stimulus” money at Americans is a poor substitute for those same politicians knocking off their COVID-19 panic-mongering, getting their boots off our necks, and letting us get back to normal life.

On the other hand, they’re not likely to do the latter any time soon, any more than they can agree on doing the former at the moment.

Americans always find ourselves prisoner to partisan political considerations, but never more cruelly or more obviously than as a major election nears. And yet the majority of those who bother to vote continue to vote for these opportunistic, self-serving jailers.

The beatings will continue until morale improves — or until we pull a mass jailbreak and start voting Libertarian.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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