The Justice who’s become the swing Justice on SCOTUS, Chief Justice Roberts, has twice played a role in rebuffing conservative hopes this week. First, in a major victory for the LGBTQ community, SCOTUS ruled 6-3 that it is illegal to fire an employee because they are LGBTQ. Here’s Mark Joseph Stern at Slate:
The Supreme Court’s decision on Monday outlawing anti-LGBTQ employment discrimination is a triumph for both the country and the court. It is a victory for the country because, in one fell swoop, the court granted vital protections to LGBTQ people in every state, making the United States a fairer, freer place. It is a victory for the court because the decision is an encouraging sign that the justices can still practice neutral and responsible jurisprudence without partisan influence. The six-justice majority was able to set aside its own potential biases and deliver an unequivocal endorsement of simple, rather obvious legal theory. By following the most straightforward path, the court reached a historic result that brings millions of LGBTQ people closer to full equality under the law.
Monday’s decision in Bostock v. Clayton County revolves around a question fraught with political ramifications: Does Title VII of the Civil Rights Act bar discrimination because of sexual orientation and gender identity? The law forbids discrimination “because of sex,” but does not mention LGBTQ people. Civil rights advocates have long argued, however, that it is not possible to discriminate against a gay, bisexual, or transgender person without taking their sex into account. So, when an employer engages in anti-LGBTQ discrimination, they are engaging in a form of sex discrimination under Title VII.
Gorsuch and Chief Justice Roberts were in the majority, but, in contrast to Stern, I note three of the justices voted on the other side, which does not leave me with feelings of wellness. I won’t pretend to understand the niceties of the legal arguments, but I will take Stern’s word for giving Justice Kavanaugh a pass:
Gorsuch’s critique is dead right: Alito does not want the court to stretch Title VII beyond its application—as expected by Congress in 1964—and that approach is not textualism. It is anti-textualism. It elevates the alleged mental processes of long-dead lawmakers over the ordinary meaning of words. Bostock was a hack test, a challenge to the conservative justices to stick by their principles even when they lead to a liberal outcome. Gorsuch and Roberts passed. Alito and Thomas failed. Kavanaugh’s more measured dissent argued that the court should’ve let Congress handle a matter of such importance. But, unlike Alito, Kavanaugh seems happy with the result, even congratulating LGBTQ people on winning a battle he thought they should lose.
One wonders if Gorsuch and, yes, Kavanaugh, are showing their allegiance to younger generations’ wisdom concerning LGBTQ members, while the elderly Thomas and deeply conservative Alito have no such sharing of wisdom.
Today, the decision on DACA (undocumented immigrants who are permitted to stay because they were brought here at such a young age that they would not do well in their “home” country, which they would not even recognize, aka Dreamers) was once again decided towards the liberal inclination, this time 5-4 with only Roberts joining the liberal wing:
The administration has tried for more than two years to “wind down” the Deferred Action for Childhood Arrivals (DACA) program, announced by President Barack Obama in 2012 to protect from deportation qualified young immigrants. Former Attorney General Jeff Sessions advised the new Trump administration to end it, saying it was illegal.
But, as lower courts had found, Roberts said the administration did not follow procedures required by law, and did not properly weigh how ending the program would affect those who had come to rely on its protections against deportation, and the ability to work legally.
“We do not decide whether DACA or its rescission are sound policies,” Roberts wrote. [WaPo]
And, for me, that last clause is the real diminishment of the decision. It’s not – and perhaps properly not – a decision on how the Dreamers should be handled, but simply a ruling that the Trump Administration’s attempt to terminate the DACA program did not follow the rules.
It is, in a sense, a technical decision concerning how decisions are made, and it almost surprises me that this is a political matter in the Court, as I’ve noted that often these sorts of matters are resolved with unanimity, or at least large majorities.
But it remains true that Roberts is not unwilling to step out of the role of rock-ribbed conservative and side with the liberal wing of the Court. Like any swing vote, he doesn’t do it often, but when he does, he makes it clear that the forces controlling the conservatives these days have only partial control of SCOTUS. This will change, of course, if any of the liberals on the Court should die or choose to retire while Trump remains in office, but if that doesn’t happen then there’s a chance that Roberts will remain the swing vote until 2025.
And remain interesting as well.
As far as DACA goes, its fate will probably be decided in the next Congress, and that is probably better than in the Court.
