The Supreme Court hears its first case of the term on Monday, October 7. Progressives would be better off if the justices stayed home. All of the efforts by Senate majority leader Mitch McConnell and President Donald Trump to reshape the Supreme Court—stealing a seat from President Barack Obama, installing a vindictive partisan who has been credibly accused of attempted rape—are about to pay off for Republicans. As a famous man once said, “We are entering a period of consequences.”
This year the court will wrongly decide cases that will be devastating to individual rights and the rule of law. The single biggest reason for the court’s aggressive posture over the next year is the presence there of one man: Justice Brett Kavanaugh.
Kavanaugh was confirmed just at the start of last year’s court term. But his effect was limited. That’s because last year he was restricted to ruling on cases the court had already prepared to hear with Anthony Kennedy, the man Kavanaugh succeeded, on the bench. This year, the court is looking at a docket largely shaped by Kavanaugh’s politics.
To understand the Kavanaugh effect, you have to understand how the Supreme Court gets cases. It hears only a tiny fraction of the cases appealed to it—usually about 100 to 150 of the more than 7,000 it could choose from to review annually. If the Supreme Court is going to hear a case, it must grant certiorari. (Don’t worry, I can’t pronounce it, either.) The key is that it takes only four justices to grant cert on a case. Not five, not nine—just a minority of them have to agree to hear a case.
People who focus on how Kavanaugh—or Neil Gorsuch or Samuel Alito or Clarence Thomas—votes on the cases in front of him to determine his left/right bias are missing half the game. Given the wide discretion over which cases the court hears, voting to grant cert on a case is itself an indication of bias. Deciding which issues of law the court will consider in the cases it bothers to hear is also an indication of bias. The votes for certiorari are rarely made public; justices are never required to give their reasons for hearing one case while ignoring another. But it’s not hard to look at the docket and say, “I see what you did there.”
With Kavanaugh in its stable, the court’s conservative bloc now has the crucial fourth vote to hear the most aggressive versions of longtime Republican hobby horses. Chief Justice John Roberts is portrayed as an institutionalist who tries to keep the court away from hot-button political issues. Kennedy was a center-right Republican, uncomfortable with the application of strict ideology to cases and controversies. Kavanaugh has none of the restraint of the man who preceded him or any of the humility of the chief. Now that he can hook up with Gorsuch, Thomas, and Alito, the 2019–20 docket reeks of their influence. The court will target the LGBTQ community and racial minorities. It will be pro-gun and pro-death. It will be pro-Trump to the point of shamefulness.
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It will also be anti-choice. On October 4, just days before it began hearing arguments, the Supreme Court decided to add a case, June Medical Services v. Gee, that centers on a restrictive Louisiana law requiring doctors who provide abortion services to have admitting privileges at a nearby hospital. If that issue sounds familiar to you, it’s because you have a working memory. The Supreme Court already decided that such laws are unconstitutional burdens on women, in a 2016 case called Whole Woman’s Health v. Hellerstedt. The only difference between that case and the new one is that Kavanaugh is now on the Supreme Court. That alone might be enough for the court to overrule itself on abortion rights and go full Handmaid’s Tale on America.
The court could make similar last-minute additions to the docket at pretty much any time during the term. As of now, the cases tackling the legal dumpster fire that is Trump’s border wall are not scheduled for review. But that could change. Trump v. Sierra Club—the case challenging Trump’s assertion of a national emergency to steal money to build his border distraction—and a bunch of other wall-related cases are not on the docket. But the court has already lifted a temporary injunction the Ninth Circuit handed down in Trump v. Sierra Club, thereby allowing Trump to start stealing money to build his wall. The Supreme Court might decide that a full hearing on the merits is unnecessary this term, before the election, after which the border wall issue may be moot or hopeless.
The challenge from the House Democrats over Trump and his cronies’ attempts to defy subpoenas for his financial documents has also not reached the Supreme Court just yet. Whether the court decides to take that case before the election is anyone’s guess. If the progressives on the court believe that Roberts will come down on the side of the rule of law, those four might be the ones who grant cert in the subpoena cases, over the objection of the conservatives.
What is on the docket will test Roberts. He has largely fooled the media into believing that he is some kind of centrist, some kind of swing vote who will mollify the worst impulses of the Republican Party. But he is no centrist. He is a conservative who excels at bending the law toward the GOP agenda as far as it can go without breaking. That he cares about it actually breaking, unlike his conservative brethren, is why he gets called an institutionalist. But it will be hard for him to pull off this sleight of hand when he is busy being the fifth vote to crush LGBTQ rights in the workplace or the fifth vote to end the Deferred Action for Childhood Arrivals (DACA) program or the fifth vote to condemn an insane person to death. (And Don’t forget, if Trump is impeached by the House of Representatives, the trial will be conducted in the Senate, presided over by the Chief Justice.)
History will likely look back at this year as a defining one in Roberts’s legacy. It could well be the year that his mask of moderation is finally ripped off. Still, while Roberts will be critical to the decisions that are made by the Supreme Court, it’s no longer really his court. He is just along for the ride; the people driving the car are Thomas, Alito, Gorsuch, and Kavanaugh. They are deciding where the court goes and what the court considers.
Buckle up. With Kavanaugh in the driver’s seat, it’s going to be a terrifying ride.
On the Basis of Bigotry
CASES: Altitude Express v. Zarda; Bostock v. Clayton County, Georgia; and R.G. & G.R. Harris Funeral Homes v. EEOC
On October 8, the Supreme Court will consider sending us back in time. Back before Randy Rainbow. Back before “don’t ask, don’t tell.” Back before Stonewall. The Supreme Court will consider sending us back to a time before there were federal civil rights laws—and will try to read the LGBTQ community out of the civil rights laws we do have.
The court will use three cases as its time machine. In Altitude Express v. Zarda, Donald Zarda’s estate contends he was fired from the skydiving company where he worked because he’s gay. (Zarda died in 2014.) In Bostock v. Clayton County, Georgia, a child-welfare worker argues that he was fired for mismanagement of funds after the county learned that he is gay. And in R.G. & G.R. Harris Funeral Homes v. EEOC, the owner of a funeral home fired his employee of several years after the employee came out as a trans woman and announced that she would be wearing women’s clothing to work.
Whether these victims are allowed to sue their former employers for discrimination hinges on the court’s interpretation of Title VII of the 1964 Civil Rights Act. The point of Title VII was to end employment discrimination. The law puts it simply:
It shall be an unlawful employment practice for an employer…to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
Some jurists on circuit courts have already caught up to the fact that prohibiting discrimination on the basis of sex includes prohibiting discrimination on the basis of sexual orientation or gender identity, but others have taken the dullest possible view of the word “sex.” They argue that sex refers only to a person’s biological assignment at birth and nothing more. They believe that “you can’t have sex with that person because of your sex” is not, in fact, exactly what discrimination on the basis of sex sounds like in real life. They insist that Title VII explicitly does not prohibit discrimination against the LGBTQ community.
Conservatives will tell you that the authors of the 1964 Civil Rights Act did not intend to protect gay or transgender individuals. That’s probably true, given that in 1964 it was still legal to criminalize what was deemed homosexual conduct. Calcifying the laws with the impurities of the small-minded men who wrote them is kind of the conservative game plan.
But Title VII has long been interpreted to include outlawing discrimination on the basis of sex stereotyping. Thirty years ago, the court decided Price Water-house v. Hopkins. In that case, Ann Hopkins claimed she was passed over for promotion at Price Waterhouse because she didn’t behave as a woman was traditionally expected to. The Supreme Court ruled that this kind of discrimination was clearly within the scope outlawed by Title VII.
Despite this settled precedent, Altitude Express and Bostock will probably come down 5-4 against gays and lesbians. It will be the most significant setback for LGBTQ civil rights since the court ruled in Bowers v. Hardwick that there was no constitutional protection for sodomy. Mitch McConnell didn’t steal a seat on the court for nothing. I expect Mike Pence will read this decision aloud to Mother when it comes down, especially if they let Gorsuch write it.
R.G. & G.R. Harris is harder to predict because discrimination against transgender individuals is even more obviously a matter of discrimination on the basis of sex as imposed by others. However, when judges want to allow sexual discrimination, they use what’s called a bona fide occupational qualification, or BFOQ, to justify it. A BFOQ is what allows Victoria’s Secret to hire only women as “angels” to model its clothes. Technically, it’s illegal sex discrimination for the company not to allow me, a gender-conforming 300-pound man, the opportunity to model the company’s new bra and panty set. Practically, I get it; nobody needs to see that. The BFOQ allows Victoria’s Secret to conduct its specialized business without frightening children.
I’m not sure how the court wangles a BFOQ out of the job description of a funeral home worker, but I’m not Roberts and thus lack a certain measure of creativity when it comes to figuring out how to achieve bigotry.
If conservatives have their way, the results will be disastrous for the LGBTQ community. We’re talking about schoolteachers being fired because they’re gay. We’re talking about trans teens getting fired from their pizza delivery jobs. We’re talking about people being afraid to put their (legal) wedding photos on their desks for fear of being passed over for promotions.
We are supposed to be past this kind of legalized bigotry in professional spaces. If the Supreme Court drags us backward, it will be on Congress to replace the progress the court takes away by updating the Civil Rights Act to reinclude protections for the LGBTQ community.
When Cruelty Is the Point
CASES: Trump v. NAACP; DHS v. California Regents; McAleenan v. Vidal
On November 12, the Supreme Court will hear these three cases, consolidated into one hearing, about Trump’s efforts to end the Deferred Action for Childhood Arrivals (DACA) program. The outcome will hinge on whether the court decides that Trump has or needs a good reason to cancel the program.
What’s at issue is a limitation on executive power. The president, through executive agencies, has broad powers to do what he wants, as long as that power is not used in an arbitrary and capricious fashion. The arbitrary and capricious standard of judicial review affords maximum deference to the executive branch. It means that courts should uphold the president’s decision if they can identify any constitutionally valid reason for the policy, even if that reason is bad or the policy is obviously flawed. It’s a standard designed to stop mad kings from acting on fleeting whims; it’s not a bar to good-faith rule-making from the executive branch.
Unfortunately, the Trump administration wouldn’t recognize a good-faith rule if it was written in rainbow sparkles by a Care Bear. “Owning the libs” is not a constitutionally valid reason to make or change a law.
This is essentially the point the Ninth Circuit made in DHS v. California Regents when it upheld a preliminary injunction preventing the government from ending DACA. It’s not that Trump can’t end DACA; it’s that he can’t end it for no reason. In response to the Ninth Circuit’s ruling, the Supreme Court took the extraordinary step of reviewing all the ongoing DACA cases—including Trump v. NAACP and McAleenan v. Vidal, even before the DC Circuit and the Second Circuit got to rule on these cases.
Because the Supreme Court granted review, the Trump administration now has another bite of the apple to come up with a valid legal reason for ending the program. Unlike Trump, the Solicitor General can’t stand up in court and call Mexicans criminals and rapists. Even Trump people know that’s not a legal justification to end a federal program. So instead, the government is throwing a lot of arguments against the wall. In the brief filed with the court, the administration argues that its decision cannot be reviewed under the arbitrary and capricious standard—because it’s an executive branch decision that is somehow magically not subject to the Administrative Procedure Act, which gives the courts standing to review executive rule-making. The White House also argues that if it must come up with a reason, the reason is that DACA provides an incentive for people to enter the country illegally. Finally, it argues that DACA was illegal when Obama instituted it, so now the administration is fixing the problem.
None of those arguments should work—in theory. The DHS is not a special agency that is above the law, there’s no evidence that DACA creates incentives for women to carry their babies over mountains and through rivers to escape whatever torments are driving them, and Republicans already repeatedly tried and failed to get DACA ruled illegal when Obama was president.
But any of those arguments might work with this court. That this case is even in front of the Supreme Court is evidence of the Kavanaugh effect. Thomas, Alito, and Gorsuch might be hot to rubber-stamp Trump’s executive excesses, but I do not believe Roberts wanted any part of this case this year. Kennedy wouldn’t have wanted to see this, either. If the court had just passed it over, the case might have resolved itself in 2021 with a new president or a new Congress that could pass some kind of comprehensive immigration reform. The decision to hear this case at this time, before all the lower courts have issued rulings, reeks of Kavanaugh’s influence as the fourth vote for partisan hackery.
Even if Roberts would have preferred to parry, now that the case is here, he is at the center of it—and he is almost certain to rule the wrong way. He, let us not forget, is the one who passed off on Trump’s Muslim ban and allowed Trump to implement massive changes to asylum rules—both cases that were challenged by arguing that the president acted in an arbitrary and capricious fashion. Although Roberts did block Trump’s attempt to add a citizenship question to the census, his reason appeared to stem not from some newfound willingness to apply minimum standards to this president but from evidence showing that the administration was clearly lying about its reasons for adding the question.
Unless there is some e-mail in which Trump says, “Dreamers should go back to their shithole countries,” Roberts is likely to again rubber-stamp Trump’s bigotry.
DACA has helped nearly 800,000 people get out of a legal limbo. The only reason for ending it is cruelty. Unfortunately, that is the point of the Trump administration.
Death Is Always on the Docket
CASES: Kahler v. Kansas and McKinney v. Arizona
State-sponsored revenge killing, more commonly known as the death penalty, has been legal at the federal level in this country since the Supreme Court reinstated capital punishment in 1976. In 1994, popular support for the death penalty reached an all-time high in Gallup Poll tracking, with 80 percent of Americans in favor of the policy. Since then, popular support has been falling. In 2018, Gallup recorded support at 49 percent, a new low in its polling.
But the current conservative majority on the Supreme Court has been going in the opposite direction. It’s no longer enough for those justices to rule that the application of capital punishment is constitutional. Now the conservatives are challenging basic concepts of mercy and decency when those arguments get in the way of the death penalty. Justice Samuel Alito has written derisively about how the court receives an application to stay an execution in “virtually every case.” Alito is worried about delays when he’s talking about killing people. Last year the court ruled that a Muslim prisoner could be denied his spiritual adviser during his death, which seems like the smallest possible comfort to offer the condemned, because he waited too long to ask for one. In March, the court decided Bucklew v. Precythe. In his majority opinion, Gorsuch wrote that the Eighth Amendment’s prohibition on cruel and unusual punishment doesn’t include the right to a “painless death.”
The conservative bloodlust will continue this term. On its first day back, the court will hear Kahler v. Kansas, which doesn’t immediately present itself as a death penalty case. At issue is the circumstance that Kansas is one of five states (along with Idaho, Montana, Utah, and Alaska) that prohibit what is commonly known as the insanity defense in criminal cases. The court is being asked to consider whether states should be constitutionally required to consider an insanity defense under the Eighth Amendment or under the Fourteenth Amendment’s promise of due process.
Prohibiting the insanity defense is problematic in all criminal cases, but in this instance, Kraig Kahler has been sentenced to die. He was convicted of the murder of his estranged wife, two daughters, and their great-grandmother. But an expert testified during his trial that Kahler was suffering from major depressive disorder, obsessive-compulsive, borderline, paranoid, and narcissistic personality tendencies. That’s not an excuse for his actions, simply an understanding of his diminished capacity to control his actions. In modern societies, we don’t put people to death who lack the capacity to know right from wrong.
The state of Kansas cannot be forced to act like a modern society. The question is whether the Supreme Court will force it to at least consider this mitigation.
The Kansas statute that tries to do the medieval work of disregarding insanity is poorly written. Conservatives could save Kahler’s life by simply ruling that the statute is legal gobbledygook too vague to be enforced while maintaining their street cred as stone-cold killers. But if the court continues its pro-death trend and rules that the Eighth Amendment doesn’t require states to look at mitigating factors like mental disability, more people will die.
The second death penalty case on the docket this term is a more straightforward application of the conservative approach to the issue. The case is McKinney v. Arizona. There, James McKinney was convicted and sentenced to death for two murders in connection with two burglaries. McKinney has post-traumatic stress disorder stemming from a “horrific childhood.” In 1991, when he committed his crimes, the judge did not consider PTSD a mitigating factor and sentenced him to death.
Times have changed since then, and on appeal, the Ninth Circuit ordered Arizona to resentence the case in light of his PTSD. From there, procedural hell broke loose. Arizona decided that McKinney could be re-sentenced by a judge alone, but he argued that he was entitled to a jury. He cited a 2002 Supreme Court decision affirming the right to be sentenced by a jury, but Arizona argues that since that ruling came out years after he committed his crimes, it doesn’t apply to his case.
It’s that issue that is before the Supreme Court: whether McKinney can be sentenced under the standards applicable in 1991 or the ones applicable now. Procedural confusion aside, it seems to me that if it was standard to kill somebody without a jury in the past but that’s not the standard now and that person is still alive, then the state shouldn’t kill him without talking to a jury first. But I’m just a guy who thinks the state shouldn’t kill people.
Unfortunately, conservative justices don’t seem to be interested in letting legal arguments—even ones as central as “Which law applies?”—get in the way of killing people.
It is depressing that the conservative Supreme Court justices seem annoyed by technicalities that have the effect of keeping people alive. As Justice Sonia Sotomayor wrote in a dissent from Gorsuch’s opinion in Bucklew, “There are higher values than ensuring that executions run on time.”
Racism Made Easier
CASE: Comcast v. National Association of African American–Owned Media
I do not know when white people decided “I don’t have a racist bone in my body” was a relevant contribution to the discussion surrounding racial oppression and white supremacy, but I do know that the Supreme Court is about to try to make that line a legally valid defense to the charge of racial discrimination.
On November 13 the court will hear arguments in the case of Comcast v. National Association of African American–Owned Media. The cable giant is trying to get around a prohibition against discrimination—one that goes all the way back to Reconstruction—and it most likely has five Supreme Court justices willing to help it do so.
At issue is Entertainment Studios Network, which is owned by television producer and comedian Byron Allen. Comcast decided to not carry the network, and Allen alleges racial bias played a role in the decision. He says a Comcast executive told him the company wasn’t trying to “create any more Bob Johnsons,” and that Comcast picked up less popular but white-owned competitors in his place.
To make his case, Allen is availing himself not of Title VII of the Civil Rights Act of 1964 but of a far older set of protections provided to African Americans under the Civil Rights Act of 1866. He’s making a Section 1981 claim (the older civil rights law is codified as 42 USC Section 1981). That law, at its most basic, guarantees the right to sue, and it says simply, “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.”
Giving black people the right to sue over racial discrimination is a pretty important step toward outlawing racial discrimination. However, Comcast evidently thinks that black people living after the Civil War have things too easy when it came to suing white people for discrimination. It apparently wants to change the long-standing interpretation of Section 1981. Currently people have to show only that race or ethnicity was a “motivating factor” in a dispute. Conservatives argue that plaintiffs must show that race or ethnicity was the “but for cause” of a denied opportunity.
“But for” is a legal term of art that means the factor must be decisive. For instance: Half-price boxed wine and lax security might be motivating factors in a person’s death by mauling in a zoo’s lion enclosure, but the zoo is going to argue that ignoring the warning signs and jumping the fence were the but for causes of death.
In The New York Times, Comcast argued that it’s making a minor, purely technical legal argument. But the difference between showing that race is a factor, versus the entire enchilada, is huge. By changing the standard along the lines Comcast and conservatives suggest, it will be easier for courts to dismiss racial discrimination lawsuits before the victims of racial discrimination even had an opportunity for discovery—the process through which plaintiffs are able to gather evidence.
Racist people rarely say, “I hate you because you are black.” They rarely say, “I would give you a contract, but the color of your skin makes me uncomfortable.” That’s not how racism works. That’s just how Clarence Thomas appears to think it works. So if Comcast succeeds in persuading five justices to require antebellum-style proof of racial bias in order even to think about suing, don’t be surprised if Thomas writes the opinion. The white conservatives love having their black friend do this kind of work for them.
“I voted for Obama” is not a valid defense against racism. The court shouldn’t make it so that you have to sound like Trump before somebody can sue you for racial discrimination.
Gun Control in the Crosshairs
CASE: New York State Rifle & Pistol Association v. City of New York
The Supreme Court hasn’t taken a case about the Second Amendment since 2010. In the years since, about 1.2 million Americans have been shot, according to the Giffords Law Center, with more than 11 out of every 100,000 US residents dying from gun violence every year. In Canada, that number is 1.9 per 100,000, and they have to defend themselves from bears. If only we had some kind of constitutional way to well regulate dangerous firearms.
On December 2 the court will hear arguments in New York State Rifle & Pistol Association v. City of New York. This case is unlikely to result in the sweeping creation of gun rights, as happened with DC v. Heller in 2008. In that case, Antonin Scalia invented a personal right to own a firearm for self-defense. In this instance, the court seems poised merely to “shred the entire fabric of state and local gun regulations,” as The Atlantic’s Garrett Epps wrote.
New York State Rifle & Pistol centers on one of these local gun regulations. New York City’s gun permitting regime is very strict. It offers a single narrow license to ammosexuals, known as a premises license. Until recently, this license barred gun owners from transporting their guns outside the city, instead requiring them to keep their guns in the home, unloaded, and allowing owners to travel with their firearms only to specified city gun ranges. Before 2001, the city granted target licenses that permitted people to carry their guns to shooting ranges throughout the state, but the city stopped issuing those licenses when it determined they were being abused.
In 2013, NYS Rifle & Pistol sued New York City over what it deemed the restrictiveness of the premises license. The Second Circuit Court of Appeals upheld New York City’s regulation, but NYS Rifle & Pistol appealed the ruling to the Supreme Court, citing the kinds of Second Amendment and interstate commerce concerns the gun lobby does anytime we try to make ourselves a little bit safer from its products. Apparently, the inability to take their city gun to their second home is a major constitutional problem for people who can afford two entire homes but only one gun.
The Supreme Court granted review. Fearing, perhaps what the conservatives would do with this case, New York City responded by changing its permitting laws, providing a way for city gun owners to transport their weapons. The city then asked the Supreme Court to dismiss the case, since the offending regulation was no longer on the books.
Under normal circumstances, this would be an easy dismissal. The case is moot, which means there is no longer an active issue to be decided. All federal courts, including the Supreme Court, are supposed to deal only with cases and controversies. They don’t give advisory opinions, and they don’t speculate on what the law could be in a hypothetical situation. Judges are not philosophers; they think about how things are, not how things could be.
Instead of dismissing the case, however, the court decided to hear it. This, again, is where you can see the Kavanaugh effect. It’s unlikely that Roberts was eager to hear a speculative case on gun rights. Kennedy wouldn’t have been likely to want this case, either. In the eight years before he retired, the court didn’t take a single gun case. The continued existence of this case is an act of aggression by the hard-right wing of the Supreme Court. It is a signal that this court is willing to hear any challenge to any gun regulation whatsoever.
Every person asking politicians to do something about gun violence in the wake of whatever mass shooting happens between now and the time I finish this sentence needs to recognize that the current conservative majority on the Supreme Court has no intention of letting meaningful gun regulations become law. It’s a message that Democratic senators heard loud and clear. Senator Sheldon Whitehouse (D-RI) filed an amicus brief in this case in support of the New York City regulation. He took the relatively unprecedented step of threatening the Supreme Court. “The Supreme Court is not well. And the people know it,” he wrote in his brief. “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ Particularly on the urgent issue of gun control, a nation desperately needs it to heal.”
Whitehouse’s brief is likely to do nothing to bring the conservative majority to heel. But his solution is the right one. This Supreme Court term is designed to show the country what it’s like when an archconservative majority is in charge of deciding which cases are heard before the highest court in the land.
This term is going to be ugly. When it’s over, people are going to go vote. If people want their votes to matter, if people want their representatives to have any real ability to fix all that has been exposed as broken during the Trump era, then restructuring the Supreme Court should probably be the first agenda item on the 2021 docket.
