The Supreme Court: This Week (6/14 – 6/21/2020)

A doozy, this week, with plenty to observe! The week began on Monday with the decision in Bostock v. Clayton County, etc. and two related cases (Nos. 17-1618 and 23, and 18-107) aka the Title VII same sex / transgender cases. On Thursday, the Court issued its opinion in Department of Homeland Security v. Regents of the University of California, No. 18-587, the DACA case. Earlier, the Court rejected certiorari writs in 10 Second Amendment cases.

For those who thought they bought the Court when they elected Donald J. Trump, this was a very bad week. But, a good week it was for the rule of law, for dignity, and for oppressed people.

Bostock

The Title VII case amounted to, what does sex mean in this context: “… because of such individual’s race, color, religion, sex, or national origin.” The plaintiffs lost their jobs because, in two cases, they were gay, and in the third because the male plaintiff decided to become a woman. Justice Neil Gorsuch, hardly a Lefty, read the plain language of the statute. He didn’t try to figure out what Congress meant in 1964. He worried not at all what might happen in the future. Instead, he did exactly what his fans detractors call good judging: follow the law.

Did Congress intend for “sex” to include same sex couples and transgender people? No, I’m sure. Does the Right Wing want courts to look behind plain language? Yes, but only when it suits them.

By the way, for those who want to understand the majority’s analysis, it goes like this: but for sex aka gender, issues like who we love and what gender we choose matter not at all. If my employment depends on my liking girls and I like boys, sex discrimination arises. Not a hard case and, by the way, hardly a reason – with Covid-19, the reliving of the post-Civil War era, our economy in the crapper, and an ever warmer planet – to enter “sky is falling” mode.

The DACA Case

The DACA case involved an attempt to set aside a 2012 Executive Order which allowed a defined class of undocumented people – Dreamers – to remain in the country and work, go to school, or serve in the military. The basis for that order? The government can exercise discretion about enforcing immigration laws and has done so for decades. In this instance President Obama exercised his discretion with respect to a class of people and expressed his intentions in advance. Questionable? Sure, and even Mr. Obama – a constitutional law professor in his prior life – had doubts. Nevertheless, he went forward.

The Trump Administration had every right to zag, after the Obama zig. All it had to do was follow the law! Just that. (“Obama didn’t, so why should I?” Save it, for the Court reached the conclusion that DACA was legal and replaceable.)

And the law? The Administrative Procedure Act, a law enacted three days before Mary Anne Trump visited upon us her soon-to-be tyrant son. So, not some Deep State thing which exists to impede Mr. Trump. No, a 74-year-old law which includes a ton of process and offer the government an opportunity to win, just about always.

The essence of the APA holds that, absent action which is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” courts will not second-guess governmental decisions. I do not practice much in this area, but decades ago I had a contractor client. Low bidder on a county job. Got the job, until a competitor claimed my client had filed multiple bankruptcies, didn’t pay his bills, etc. The county canceled the award and we sued. And we lost, even though 95% of what the county heard was false and explanations existed for the rest. In the end, the county had the ability to latch onto a basis for its contracting decision, however skinny it was.

In the DACA case – warning, this gets complicated – the Obama Administration adopted the DAPA program in 2014, to deal with Dreamers’ parents. Courts held that the process for adopting the DAPA plan did not comply with the APA. End of DAPA.

To get rid of DACA, the Trump Administration said, as goes DAPA, so goes DACA. No more legal analysis than that. No factual analysis. Nothing! And that, plain and simple, explains the 5-4 decision.

The Gun Cases

On to the cases that got nowhere. For decades, lawyers and interest groups have used the Supreme Court to advance causes. The NAACP found the right cases to end school desegregation. Ruth Bader Ginsburg, aided by her rock star tax lawyer husband Martin, used a discriminatory provision in the Internal Revenue Code – discriminating against men who provide home health care for relatives – to establish a basis for attacking workplace discrimination against women. And anti-abortion groups have repeatedly passed laws which have as their sole purpose attacking Roe v. Wade.

So, when the gun folks put together a set of 10 cases, having as their purpose extending the right to own killer weapons, most people assumed they would scare up interest among at least four justices, the number necessary to grant certiorari and review a matter. Nope. Didn’t happen. Why? Who knows, but I can count. The six nays must include the four “liberal” justices, and almost surely does not include Justices Alito, Kavanaugh, and Thomas. My bet? The Chief Justice values the Court’s reputation and institutional role. Messing around with more gun rights, in these times, enhances the Court not at all. And along came Justice Gorsuch!

Wrapping Up

The rule of law had a very fine week. Dignity showed well. And, of course, the platforms for following the law served the interests of millions of people who suffer because millions more can’t appreciate our differences.

P.S. Shame on those Wingnut leaders who know exactly why and how the Court reached its decisions, for stirring up the masses with outrage and rants about