The Supreme Court’s majority opinion in Bostock v. Clayton County has received some well-deserved criticism and lamentation. From being grounded in overly simple logic to potentially undermining religious freedom, Bostock seems to raise as many legal questions as it answers.

The majority opinion in Bostock is also an example of the court doing what we (and the Constitution) envision Congress should be doing: making policy decisions. But critics of Bostock must do more than simple hand-wringing over the court stepping into a policy void – Congress has not legislated on much of anything related to or implicated by Bostock in decades. We must recognize how we may have facilitated, even invited such a ruling. 

Since Marbury v. Madison in 1803 – where the court claimed for itself the power to declare duly enacted laws unconstitutional – the Supreme Court has often moved to fill lingering and ongoing policy, political or power vacuums. For instance, it did so during the 1800s through rulings like McCulloch v. Maryland. It continued this habit through the 1900s with rulings like Brown v. Board of Education. And it has kept up this pattern in the 2000s with rulings such as Obergefell v. Hodges.

Why do these centuries of court history matter? Because they suggest that the court’s impulse to fill policy and political vacuums may be built into the court itself – perhaps into the very human nature of the justices. This is not something that could be fixed by picking different justices.

Hope is not lost for critics of Bostock. We may not be able to nominate our way out of this problem, but we can find a solution in the wisdom of James Madison. In prescribing the checks and balances intended to keep each branch of government in its proper role, Madison wrote in Federalist No. 51, “Ambition must be made to counteract ambition.”

The best way to check the ambition of the Supreme Court to make law, rather than interpret law, is to ensure that Congress is actually making the laws, rather than sitting on the sidelines.

Many of the instances in which courts have stepped in to make policy decisions have been policy areas where Congress has failed to legislate despite the existence of real and pressing problems that deprive Americans of basic human needs – employment, housing, voting rights, etc. Civil rights and LGBTQ equality decisions over the last 70 years fall into this category.

For critics of decisions like Bostock, keeping the courts out of the business of setting policy in areas such as LGBTQ rights, personal privacy, religious freedom and free speech means getting serious about Congress legislating in those areas. Since Congress is designed to work by building consensus through reasoned deliberation and principled compromise, this means getting serious about where and how to strike agreements or compromise with political opponents in order to pass legislation. Rejecting the idea of compromise through appeals to principles or values is inviting judicial activism and implicating your principles or values in that activism.

Much of our national politics today – on both the left and right – is designed, if not intended, to prevent congressional compromise. By preempting congressional action, many activists who oppose judicial rulings based on the policies they establish are, in fact, creating the policy and political vacuums that make such decisions possible. They are part of the very problem they recognize in the courts’ actions.

The way forward, then, is for liberals and conservatives to incorporate a principle of compromise into their approach to politics and legislation. No doubt some will recoil in horror at the idea of compromising with opponents. But a recognition of constitutional design and American political principles will reveal that this is how American freedom and government is meant to work. The alternative is the policymaking from the high court that we see today.

The Supreme Court’s majority opinion in Bostock created legal difficulties and uncertainties while protecting the LGBTQ community from reasonable concerns about workplace discrimination. The question is, will we assent to such results by continuing in the status quo, or reject them by seeking congressional compromise as an alternative? 

If we aren’t willing to change ourselves, then our government will simply remain the same as well. We will become the failures that we see in our laws and in our public policy today. And that would truly be something to lament.