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You are here: Home / Civil Rights / Happy surprise

Happy surprise

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6-3 decision Gorusch writing joined by Roberts, Ginsburg, Breyer, Sotomayer, and Kagan.

The new HHS rule that rolled back quite a few protections for LBTG-Q folks that got finalized last Friday will be under significant legal pressure now.

Open thread.

Reader Interactions

176Comments

  3. 3.

    Turgidson

    I’m shocked. SHOCKED I say, that Bart O’Kavanaugh was pro-discrimination.

    Thanks Susan “Concerned” Collins. Thanks a bunch.

    Must confess I didn’t have Gorsuch being on the right side on my SCOTUS bingo card. Yay?

  4. 4.

    Punchy

    I’m really curious to read the dissent. This ruling is such the no-brainer for equity, common-sense, and a clear reading of the law that the dissent must have really gone rogue. Cites to the Bible and Focus on the Fam literature? Kav admitting he doesn’t like beer bonging with the gheys?

  6. 6.

    TaMara (HFG)

    And now this…

  7. 7.

    Dagaetch

    @Punchy: Seems like he basically didn’t want the Court to be deciding it. The end of Kavanaugh’s dissent:

    “Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII. I therefore must respectfully dissent from the Court’s judgement”

  8. 8.

    geg6

    @TaMara (HFG):

    Wow.  It’s been a pretty big day for the good guys at SCOTUS today.

    These rulings make me very happy.  And what is this going to do for Cheeto Mussolini’s executive order allowing discrimination in health care?  Does this cancel that out or do they still have to go to court?

  9. 9.

    JPL

    This is good news indeed.   We are still waiting for the Supremes to decide ACA and DACA.

  10. 10.

    Baud

    @JPL: 

    ACA won’t be until the fall. Still plenty of cases for the GOP 5 to screw us over. But a win is a win.

  12. 12.

    geg6

    @TaMara (HFG):

    I also saw they refused to take up a challenge to the CA sanctuary cities.  Damn.  It’s like they’re slapping Trump in the face, over and over and over.  LOL!

  13. 13.

    Mary G

    The LA Times is also reporting that the Supremes have refused to hear the administration’s case against California’s sanctuary for undocumented residents from ICE and CPB!  Xavier Becerra FTW over Stephen Bigotry is Good Miller.

    I am waiting for the ruling on Twitler’s tax returns.

  15. 15.

    Matt McIrvin

    @Dagaetch: Ha, even Kavanaugh’s dissent has to softpedal it.

    As I said in the other thread, I think Gorsuch’s behavior here is part of a pattern: he’s more an ideologue than a party hack. So it’s possible to get the occasional win out of him by appealing to principle.

  16. 16.

    geg6

    @Mary G:

    OMG, I forgot about that one.  Is that one due to come out?

    Oh please, please, please, let it be another slap to Trump’s face.

  17. 17.

    rp

    Fascinating to compare Alito’s and Kavanaugh’s dissents. Alito once again proves that he’s the worst justice by FAR. He might be one of the worst in SCt history.

  21. 21.

    Matt McIrvin

    So, taken together is it another example of the Mr. Dooley principle? The Court responding to, if not the election returns, at least the way the wind is blowing.

  22. 22.

    Anonymous At Work

    Gorusch is an extremist candidate in the line of Bork, not Thomas.  He’s not a Kavanaugh, a bare political actor with lawyerly credentials, but someone with extreme Federalist Society views that gives extra special meaning to the Divine Thoughts of The Founders’ Secret Meanings.

    This case was a pretty simple one that, in a neutral setting, was a no-brainer.  Title VII forbids sexist treatment of employees and transgender and LGTB-Q people are being discriminated for not conforming to social perceptions of sex.

  23. 23.

    randy khan

    @Dagaetch:

    To translate Kavanaugh’s dissent from goobledegook:

    I’m going to make noises like I think that there shouldn’t be discrimination against gay and transgender people, but instead of reading the law the way it’s written, I’m going to make believe that Congress wrote something else.

  25. 25.

    Mary G

    @geg6: According to Twitter. I have no idea if it’s true. If it does and he loses three big cases the deranged butt hurt tweets from the bunker will be epic and Sarah Cooper will have more material to lip sync, I’m sure.

  26. 26.

    randy khan

    @Matt McIrvin:

    Gorsuch appears to have principles.  They’re mostly not principles that I want people to have, but every once in a while they push him the right way, and as a result it looks like there’s a playbook for getting his vote.  It’s sort of like Thomas (who is surprisingly good on criminal law issues) and early Scalia (but not late Scalia, after he started watching Fox News).

  27. 27.

    SFAW

    @Dagaetch:
    Shorter Kavanaugh: “I can’t justify my dickishness, so I’ll just word-salad it with some ‘separation of powers’ bullshit.”

  28. 28.

    Omnes Omnibus

    @JPL: Far be it from me to defend Kavanaugh, but saying that is not the Court’s place to make such a decision isn’t unreasonable.  Oddly, it is the kind of decision someone who believed in judicial restraint would make.  I suspect that Kav will only rely on judicial restraint when the exercise of judicial power would result in a more just and/or equitable country.

  29. 29.

    burnspbesq

    The conversations between Gorsuch and Kavanaugh would have been interesting to listen in on.

  30. 30.

    Turgidson

    @randy khan: I’m imagining he asked a clerk to append that “really I’m not a bigot” throat clearing to the end and didn’t even read it.

  31. 31.

    SFAW

    @Mary G:

    Sarah Cooper will have more material to lip sync, I’m sure.

    Will no one think of her poor husband, who has to listen to the Murderer-in-Chief’s disgusting voice over and over?

  32. 32.

    rp

    I certainly don’t agree with Kavanaugh, but it’s not a crazy position to take. What is crazy is Alito’s hysterical (not in the funny sense) dissent.

  33. 33.

    Major Major Major Major

    Great news!

    I honestly had forgotten we even had LGBT rights cases being heard. I woke up to the headline and assumed libs + Roberts, with Gorsuch as a dark horse. Surprised myself by being right.

  34. 34.

    Baud

    I actually think Kavanaugh will be with us on some things that Gorsuch won’t be.  I think Alito is the most rank partisan on the court, and Thomas is the mostly ideologically out there.

  36. 36.

    burnspbesq

    There will be times in the future when we will really really hate Gorsuch’s hyper-textual approach to statutory interpretation and pine for Kavanaugh’s institutionalism and respect for the separation of powers.

  37. 37.

    Baud

    @Omnes Omnibus:

    Agree, although it seems like conservative justices who dissent in statutory interpretation cases too often claim that the majority didn’t just get it wrong, but violated separation of powers.  It’s a lame way to try to make a dissent seem more momentous than it is.

  38. 38.

    rp

    @Baud: Agreed. Kavanaugh hasn’t been as much of a hack as I expected. Thomas is a wack job, but not a partisan hack.

  39. 39.

    Elizabelle

    Very good to see this. I always hold my breath when I hear the USSC has decided anything.

  40. 40.

    Mary G

    The market is down again and apparently the Tulsa newspaper has come out strongly against Saturday’s rally (I couldn’t get it to load the answer this question ad), both on coronavirus and racial history grounds. The campaign hasn’t paid a lot of cities for the extra police protection, so I hope this will become a thing.

  41. 41.

    mrmoshpotato

    @geg6:

    I also saw they refused to take up a challenge to the CA sanctuary cities.  Damn.  It’s like they’re slapping Trump in the face, over and over and over.  LOL! 

    Gonna mess up Dump’s clown makeup.

  43. 43.

    Turgidson

    @rp: all five of the conservatives are partisan hacks when they need to be – we have plenty of evidence  of that at this point – but to varying degrees, and using varying strategies.  Roberts is a pragmatist who wants to maintain the court’s legitimacy.  Alito pretty much always takes the maximally right wing position no matter what.  Gorsuch has some Scalia-ish independence but will always be there when they need him.  Kavanaugh is pure GOP operative in a robe.  Thomas is a bitter old right wing coot.

  44. 44.

    PaulWartenberg

    @Turgidson:

     

    @Matt McIrvin:

    I don’t know if ideologue is an accurate term. Gorsuch has shown a tendency to abide by case history (he’s sided with the liberal justices more than once because of it). I believe in this ruling for gay/trans rights he was going by previous sex discrimination decisions. I am not sure what rulings Kavanaugh/Alito/Thomas had to go by for their dissents, but usually there’s not a lot of discriminatory rulings left in the books.
    You have the Far Right types of Big C Conservative justices who try to find any means to fit the ruling to political bias, and then the small C conservatives (of which Roberts also shows from time to time) who think long-term implications and a tendency to argue towards an open interpretation of legislative intent (how Roberts defended the ACA).
    This doesn’t mean Gorsuch and Roberts can be counted on to protect Congress’ power to investigate, but it does provide some hope…

  45. 45.

    Elizabelle

    @Baud:   Agree.  Alito is Scalito for sure (and let us all celebrate here that A. Scalia is still dead, dead, dead), Thomas amazes only by opening his mouth.

    Kavanaugh has been a pleasant surprise on several decisions, and Gorsuch for sure, here.

  48. 48.

    mrmoshpotato

    @SFAW: True.  And the same bullshit, take after take.  I wonder how often a take is ruined by Sarah being overcome by Dump’s stupidity.

    She has to occasionally let out a “Oh for fuck’s sake!” mid-sentence.

  49. 49.

    Hoodie

    Gorsuch’s reasoning here was not really all that surprising.  His rationale on this is quite simple; the statute says you can’t discriminate based on the gender of the person, so you can’t fire a man for loving a man if you wouldn’t fire a woman for the same reason.   Would he be such a literalist on the Second Amendment.

  50. 50.

    scav

    Still wouldn’t trust most of the robed magic 8-balls further than I could throw them (often with great pleasure) but it’s a nice set of decisions (especially in timing).

  53. 53.

    Hoodie

    @burnspbesq: If I had to choose, I generally prefer Gorsuch’s approach to Kavanaughs but, maybe between the two of them, we’ll get fewer really bad rulings that we would likely get if both of them were like Alito.

  54. 54.

    chopper

    @Punchy:

    alito’s dissent is angry even for him. inexplicably it’s got like a 20 page appendix. it’s like one of those overly-long greenwald screeds he used to pump out whenever someone, somewhere criticized his ‘reasoning’.

  56. 56.

    Barbara

    @SFAW:

    Will no one think of her poor husband, who has to listen to the Murderer-in-Chief’s disgusting voice over and over?

    I have to believe she uses headphones.

    ETA:  On the substance, having read all the extant decisions that have raised the issue previously, those that have protected LGBT interests are far more persuasive in their analysis of the original enactments and subsequent amendments.  Any job related decision that smacks of “you don’t conform to my ideas of what it means to be a man/woman” is within the contours of the Court’s previous interpretations of Title VII.  Cases analyzing the equal protection provisions of the 14th amendment for situations where Title VII doesn’t apply have been less favorable.

  58. 58.

    Another Scott

    @chopper:

    Alito seems to be a neo-Sudducee:

    […]

    The differences between the Pharisees and the Sadducees are known to us through a couple of passages of Scripture and through the extant writings of the Pharisees. Religiously, the Sadducees were more conservative in one doctrinal area: they insisted on a literal interpretation of the text of Scripture; the Pharisees, on the other hand, gave oral tradition equal authority to the written Word of God. If the Sadducees couldn’t find a command in the Tanakh, they dismissed it as manmade.

    […]

    Socially, the Sadducees were more elitist and aristocratic than the Pharisees. Sadducees tended to be wealthy and to hold more powerful positions. The chief priests and high priest were Sadducees, and they held the majority of seats in the Sanhedrin. The Pharisees were more representative of the common working people and had the respect of the masses. The Sadducees’ locus of power was the temple in Jerusalem; the Pharisees controlled the synagogues. The Sadducees were friendlier with Rome and more accommodating to the Roman laws than the Pharisees were. The Pharisees often resisted Hellenization, but the Sadducees welcomed it.

    […]

    (The more things change…)

    Cheers,
    Scott.

  59. 59.

    LuciaMia

    Ha, even Kavanaugh’s dissent has to softpedal it.

    Talk about trying to have your cake and eat it too.

  60. 60.

    Omnes Omnibus

    @Ruckus: Sometimes the Court decides that it should not have taken a case.  It can be because it is would be better decided by the political branches, because they decide the issue is ripe for a decision (that the lower courts should bat it around some more), because the case is moot, and so on.  These are also reason why the Court would decline to take a case in the first place.  I could go into much more detail but I need to head out to a meeting.

  62. 62.

    MisterForkbeard

    @mrmoshpotato: Honestly, I think they’re trying to do Trump a favor here.

    They’re not taking controversial cases ahead of the election that Trump is on the wrong side of. The liberals don’t want to take those cases because they’re stupid cases and don’t deserve to be heard. The conservative judges don’t want to take them because they’d look bad for Trump before the election if these issues get a lot of attention.

    If you can make the average voter start to realize “Oh wait, Republicans hate gay people, want more police violence and babies in cages, and….” right before the election, you’ve fucked up as a political operative. Same reason they weren’t taking Obamacare cases as fast as they could – they don’t want that bomb to land right before the election.

  63. 63.

    Sister Golden Bear

    @scav: There are drinks right now. I can’t stop crying—I was sure that the decision would go the other way.

    The bigger implication is that the court decided “sex” in this context includes not just sexual orientation but also gender identity—undercutting the administration’s attempt to define legal “sex” as assigned at birth and never possible to change. Which has some really horrific implications for trans people, since it’s an attempt to define trans people out of legal existence. And if trans people don’t legally exist, there can be no such thing as “anti-trans discrimination” — essentially legalizing open season on trans people. Oh, and forcing trans people to have legal IDs with the sex they were assigned at birth, forcibly outing them, and exposing them to the full force of discrimination.

    I just wish Aimee Stephens (plaintiff in the trans-related case) had been able to live to see this day.

  64. 64.

    Fair Economist

    Gorsuch, the libertarian, signed on to anti-discrimination protection? What is he up to? Weakening support for expanding the Court? Trying to split LGB from the Democratic coalition (transgender is certainly a bridge too far for them)?

  65. 65.

    MisterForkbeard

    @DRickard: Going to repost something I wrote from the previous thread:

    I don’t think Trump cares, really. He’s never been particularly anti-gay so far as I can tell – he just doesn’t care about them at all and gets that being ‘nice’ to gay people is in right now. This is why he can act supportive and then appoint people to do massive damage to them, because he wants to make evangelicals happy and it keeps his hands relatively clean.

    But it’s not like black & brown people, whom he actively disdains. Or maybe I’m giving him too much credit. But I wouldn’t be surprised at all if he just shrugs and says “okay” and then moves on, because it doesn’t directly affect him.

    This MIGHT change if he gets enough whining from the evangelicals about it, because then he’ll have to show that it wasn’t HIS judgment that was the problem.

  66. 66.

    Elizabelle

    @MisterForkbeard:   Agree with you.  I think anti-gay is a fake coat that Trump puts on for the hateful evangelicals and craven rightwingers among his supporters.  This is not personal to Trump, and I would believe he has had several gay friends and associates in his circle.  For example, Roy Cohn.  Trump is all about the money and power.

    Muslims and Mexicans.  Another story.

  67. 67.

    Elizabelle

    And the hits keep coming:

    NY Times breaking news:

    The F.D.A. is revoking emergency authorization of two malaria drugs for Covid-19 promoted by President Trump, calling them “unlikely to be effective.”

    Monday, June 15, 2020 11:55 AM EST

    The drugs, hydroxychloroquine and a related drug, chloroquine, were heavily promoted by President Trump after a handful of small, poorly controlled studies showed that they could work in treating the disease.

    Mr. Trump even took hydroxychloroquine after he was exposed to two people who had tested positive for the coronavirus.

    ** Do we know that Trump “took” hydro …?  Or did he just say he did, and had his doctor issue a noncommital letter on that subject?

  68. 68.

    Another Scott

    OTOH, SCOTUS reverses pipeline decision 7:2:

    (Sotomayor’s dissent)

    The majority’s complicated discussion of private-law easements, footpath maintenance, differently worded statues, and policy masks the simple (and only) dispute here. Is the Appalachian National Scenic Trail “lan[d] in the National Park System”? 30 U.S.C. 185(b)(1). If it is, then the Forest Service may not grant a natural-gas pipeline right-of-way that crosses the Trail on federally owned land.
    […]

    They never let the clear text get in the way of what they want to do for giant corporations…

    Grr…

    Cheers,
    Scott.

  70. 70.

    patrick Il

    @Turgidson: They take turns pretending  law matters to them.   But when it  comes to corruptiong or minimizing  the vote: VRA, Voter ID,  money in politics, gerrymandeng, or the latest trick —  forcing people  to stand in long lines  during a pandemic —  they stand as one.

  73. 73.

    Mary G

    Enjoying the Twitter whining from Erick Son of Erick, J.D. Vance, Rod Dreher, and Carrie Severino today.

  74. 74.

    Hoodie

    @MisterForkbeard: Perhaps, but it could be that Roberts, Gorsuch and/or Kavanaugh are reading the tea leaves and waiting to see if Trump and the GOP get slapped down in 2020.  I wonder if at least one or two of those guys are leery of being the remaining ideological standard bearers if the GOP gets routed in the political branches.  They’re going to be around a while and the social context is changing for them.  They’re partisan, but socially they’re probably closer to Sotomayor and Kagan than to angry old men yelling at clouds like Thomas and Alito.

  77. 77.

    Ninedragonspot

    I’d almost forgotten what genuinely good news felt like.  I’m a little teary over my coffee this morning.  Happy Pride, y’all!

  78. 78.

    MisterForkbeard

    @Elizabelle:

    ** Do we know that Trump “took” hydro …?  Or did he just say he did, and had his doctor issue a noncommital letter on that subject?

    He said he did, and we don’t have any real indication on it. His doctor did not actually say Trump was taking it or that he prescribed it.

  79. 79.

    Sister Golden Bear

    What makes this an especially BFD is that more than half of LGBTQ people lived in states that where they could be fired for who they were—until today.

    Most people thought we already had protections against discrimination. We didn’t, and still don’t for non-employment types of discrimination (although I’m this case will be used as leverage in cases against housing discrimination etc.).

    One thing that sucks about quarantine is that I’d really like to got out and celebrate with my peers today/tonight.

  81. 81.

    PPCLI

    @rp: Don’t underestimate how horrible some of the competition for “one of the worst in SC history” is.

    Alito’s a shameless, dishonest reactionary hack whose decisions are dictated by politics alone. But even he doesn’t sink to the level of such true monsters as Taney or McReynolds.

  84. 84.

    scav

    @Elizabelle: He may not personally give a fig about this specific target of his petulance, but he’ll sure as hell be irked by the flagrant, public lack of compliance with his authoriteh. His generals, His justices, His DOJ.

  85. 85.

    jonas

    @Mary G:The campaign hasn’t paid a lot of cities for the extra police protection, so I hope this will become a thing.

    At a time when a lot of municipalities are reeling economically from the shut down and nosediving tax revenues, how many are going to be eager to pony up tens or hundreds of thousands of dollars in police and public safety overtime so the Tangerine Toddler can throw one of his redneck Nuremberg rallies, particularly knowing there’s a snowball’s chance in hell they get reimbursed for it? I expect a lot of cities this summer will be “politely declining” the opportunity to burn precious revenues while hosting a massive Covid infection party.

  89. 89.

    scott (the other one)

    @Hoodie: That’s closer to my way of thinking. Especially with John Roberts in the mix. I think they see which way the wind is inexorably blowing on this issue and are looking at the train coming down the track in November and I think they’re looking to avoid getting the court packed. I think it’s (almost) that simple—they don’t want to lose their majority.

  92. 92.

    Frankensteinbeck

    @Sister Golden Bear:

    There are drinks right now. I can’t stop crying—I was sure that the decision would go the other way.

    I am physically shaking from relief and it’s hard to type.  I am not queer, but I’m the only not queer person in my social circle and I’d say 2/3rds of my friends are trans women.  This ruling was personal to me and after the EO I heard this ruling would happen today and I’ve been terrified.  It has been a background dread for a long time.

  93. 93.

    schrodingers_cat

    Where are all those NYT columnists like MoDo who used to tell us that the Grapefruit currently in WH was secretly more liberal than HRC? Does she still write for NYT or has she retired?

  94. 94.

    Mallard Filmore

    @mrmoshpotato:

     

    I wonder how often a take is ruined by Sarah being overcome by Dump’s stupidity.

    That’s what the “cuts” in the video are for. I have not seen one that goes the whole performance in one take.

  95. 95.

    FelonyGovt

    @Sister Golden Bear: So happy for you, and for the side of justice in the US. And you’re right, living here in California (as you do) I tend to forget how vulnerable people living in red states are to religious intolerance and job discrimination.

  96. 96.

    Hoodie

    @scott (the other one): That is one aspect, but the big picture is that the most important thing to them is being part of the establishment, i.e., they don’t want to be complete social outcasts.   LGBTQ rights is the thin edge of the wedge because they have become so widely and quickly mainstreamed.  They’ll still be right wing on most economic issues, but they may demur more in the future on cultural signifiers like this.   It is interesting they also punted on all the 2nd Amendment cases and maybe will do so even on reproductive rights, although I have less hope for sanity on the latter.

  98. 98.

    trnc

    @Mary G: Sarah Cooper will have more material to lip sync, I’m sure.

    Has she made a non-lip sync video of drinking water and walking? Not in the usual wheelhouse, but I bet someone could do something with those.

  99. 99.

    Omnes Omnibus

    @schrodingers_cat: I think that  the millions of people affected by this decision might regard it as something more than sugarcoating for a different bad result.

  100. 100.

    rp

    @PPCLI: True, but adjusted for era I think it’s pretty close. Imagine what Alito would have done in the 19th century!

    Similarly, I think Trump is the worst person in the world adjusting for context. Sure, Putin and Kim are objectively worse in many ways, but if they’d been brought up upper class in the U.S. they’d probably be better human beings than Trump. And if Trump had been raised in N. Korea he’d probably be 10x worse than Kim.

  101. 101.

    Anonymous At Work

    @Ruckus: The shorter version is “The Court assumes a healthy and functional Congress can decide these things and throws it to them.”

    Not a fan, in case you can’t tell.

  102. 102.

    Ruckus

    @Sister Golden Bear:

    They really only see themselves and their “ideal” vision of themselves at that, as the reasonable and viable version of person. They can’t wrap their minds around anything else, even in the face of overwhelming evidence in their own mirrors, let alone the world around them.

    Life is not messy to them it’s just very limited. And they think it would be better that way. They are one for all and all as one. It is a sick concept of life that they can see no variation, no variety, no color, no depth, only “correctness,” only order and limits. And they violate those ideals every day without any concept that they are shallow, and just fucking wrong. They constantly fail because they worship something that isn’t real and can’t exist. Look at the presenters on faux news. The men vary, the women really do not.

    The men have power, the women have a place. And everyone else is beneath them and therefore controllable. The thought that someone can alter their place skews their entire world, takes that control and throws it out the window. They don’t want the world as it is, they want the world that only exists in their tiny minds.

    Sorry, rant over.

  103. 103.

    Just Chuck

    @rp: If T had been raised in the DPRK, he’d be dead from his inability to keep his pie hole shut.

  107. 107.

    Ruckus

    @scav:

    And more important how this makes him look.

    Not that he’s helping himself in this endeavor in the least….

  108. 108.

    J R in WV

    Hurray for our side! I’m just an old man uppa hollow, and I hate this small-minded discrimination in the worst way!!

    Congrats to all our gender-blurring Jackals and their families. Esp Sister Golden Bear, who has worried about this situation out loud for some time. Hope she can relax a bit now!

  109. 109.

    Sister Golden Bear

    @Ruckus: Agreed.

    The biblehumpers have a literal five-point plan to eradicate trans people from public life. Not just to legislate transgender people out of existence by making the legal, medical, and social climate too hostile for anyone to transition in. But also, by making us invisible we don’t disturb their little world. Similar to how rural LGBTQ people (about a fifth of the overall LGBTQ) people are treated. It’s often a “we know, but as long as they don’t flaunt it (i.e. give any public indication that they’re LGBTQ), we’ll pretend they aren’t” attitude.

  110. 110.

    Benno

    @Omnes Omnibus: Isn’t it the court’s role, though? The congress makes laws, the president can veto them. If the people still find the laws unjust they can have a third party, the courts, review the law for legality. Isn’t that what separation of powers is? Otherwise, SCOTUS has no reason to exist. Like, literally. What is it there for if not to decide the constitutionality of laws duly passed by congress. (I feel like this is a dumb question and I am missing something painfully obvious).

  112. 112.

    patrick II

    @scott (the other one):

    I agree.  Roberts is keen to keep the authority of the court up so when it comes to important matters that most directly affect vote, VRA, voter ID, gerrymandering, and most importantly money in politics, they can still seem more like justices than they are.

  113. 113.

    Chetan Murthy

    Re: Justice Boofy’s dissent, sure sounds a lot like the Roe-v-Wade-gutting two-step.  I remember a perceptive commentator explaining:

    When (pro-choice) campaigners went to the legislature, the opponents said that was the wrong place: that it was a matter for the courts.  When the campaigners went to the courts, the opponents switched tacks, and said it should be a matter for the legislatures (so the people would get to vote on it).  Nice two-step.

    And IIRC they did the same thing to oppose same-sex marriage.  Justice Boofy is just executing out of the standard playbook.  And the wording of his decision makes me wonder if he’s teeing up something around non-delegation, too. [that’s when courts strike down administrative rules by arguing that Congress didn’t have the power to delegate rule-making power: that Congress needs to legislate -all- the rules.]

  114. 114.

    Omnes Omnibus

    @Benno: The Court does not review every law that is passed. Also, it only reviews them in the context of the particular case or controversy in front of them.

  115. 115.

    Le Comte de Monte Cristo, fka Edmund Dantes

    @Mary G:

    My theory is that Roberts refers to be Chief Justice over a narrow partisan split as opposed to being CJ of a 15 member court where he’s most often on the losing side.

  116. 116.

    Roger Moore

    @Ruckus:

    Isn’t that sort of the courts entire role, to decide the legality/constitutionality of laws?

    A large part of what they do is to determine the meaning of the law when that meaning is called into question.  In this case the question was what Congress meant when they said it was illegal to discriminate on the basis of sex.  Did that mean only that you couldn’t fire someone for being a woman (or a man), or did it mean that you couldn’t fire a woman for behavior you would tolerate in a man (or vice versa)?  In this case, the majority decided that it meant the latter, and that meant it extended to sexual orientation, since firing a man for loving other men is punishing him for something that would be acceptable if he were a woman.

  117. 117.

    Barbara

    @rp: I don’t agree with Alito, but his “textual” analysis is not novel and it tracks what other appellate courts have held.

    His point, is that the use of “sex” has always been interpreted to mean “biological sex,” but this has always seemed to me to be a distinction without a difference.  Take two employees, one female and one male who each bring their male fiances to the holiday party.  If you fire the man but not the woman, you are basically firing him because he did something as a biologically male employee that you don’t object to for female employees — that is, dating men.  You have to be seriously myopic to not see the parallel between examples — upheld by every court — in which an employer is not permitted to fire female employees for being insufficiently feminine just as long as he also fires male employees for being insufficiently masculine.  This fact scenario is clearly a variant of those holdings:  I’m firing you because you are a biological male doing something I think should be reserved to biological females.

    I think his focus on what people thought about gender in 1964 is also totally ridiculous, because in large part the statute was supposed to serve as a counterweight to people’s conceptions about gender norms in 1964.  This is the point Goresuch gets right, that Congress probably had only a vague idea of what non-discrimination on the basis of gender might bring about in the way of social change when they added the word sex to Title VII.

    Everyone should also remember that Title VII doesn’t apply to all employers, especially really small employers and state institutional employers.  Many state laws track Title VII, but not all.  Still, it’s a great result and if it had gone the other way, it really would have been dire.

  119. 119.

    Frankensteinbeck

    @patrick II:

    gerrymandering

    While you would think Roberts would be pro-gerrymandering, apparently this court has been about 50/50 on gerrymandering cases.  From what I’ve heard, Roberts mostly follows a ‘gerrymandering based on race is not allowed’ and despite his VRA monstrosity, really has struck down a lot of race-based gerrymandering instead of making excuses.  It’s a travesty that the court isn’t 100% anti-gerrymandering, but still, it’s different from what people assume.

  120. 120.

    Baud

    @Frankensteinbeck:

    While you would think Roberts would be pro-gerrymandering, apparently this court has been about 50/50 on gerrymandering cases.

    Unfortunately, that’s mostly a reflection of how blatant recent racial gerrymandering has been in red states.

  121. 121.

    cain

    @MisterForkbeard: He said he did, and we don’t have any real indication on it. His doctor did not actually say Trump was taking it or that he prescribed it.

    We can’t really believe anything coming from his mouth. The man lies more than he tells the truth. If he is telling the truth it was by accident.

  123. 123.

    schrodingers_cat

    @Omnes Omnibus: I have noticed that off late you seldom let an opportunity slip by to comment about how I am commenting wrong.

    I am in no way diminishing today’s result and I am glad that they ruled the way they did.  But this good ruling makes me even more apprehensive about the DACA ruling.

  125. 125.

    Frankensteinbeck

    That Gorsuch specifically ruled that ‘sex based discrimination’ also means sexuality and identity is a gigantic win far beyond anything I expected.  The more I read about this ruling, the happier I am.

    EDIT – Seriously, it’s not likely for Gorsuch to change his mind on future cases where the definition of ‘sex based discrimination’ comes up.  That means a whoooole lot of anti-gay and anti-trans legislation is heading for doom.  We may lose stuff on other grounds, but that is the biggest one.  I am gobsmacked.  I figured Roberts would save a lot of liberal stuff because he doesn’t have Kennedy to blame anymore.  This is way beyond my best hopes.

  126. 126.

    catclub

    @geg6: And what is this going to do for Cheeto Mussolini’s executive order allowing discrimination in health care? Does this cancel that out or do they still have to go to court?

     

    No It does not.  Yes, they will still have to.

  129. 129.

    Ladyraxterinok

    @Mary G:

    It is usually impossible to go through the hoops to read the paper on the net. You-‘d think they wanted you to buy a subscription in order to read it.

    In 50s, 60s (and later?) we had 2 fairly decent papers, 1 morn, 1 eve

  130. 130.

    rp

    @Barbara: But that’s my point. His dissent isn’t much different from Kavanaugh’s substantively, and it’s not a crazy position to take. But his version of it is completely over the top and ridiculous. He’s genuinely angry that he lost because he’s a complete partisan hack.

  131. 131.

    debbie

    @Baud:

    He’s still so ticked at Obama for calling the Court out on partisanship that he’s proving him right.

  132. 132.

    Brachiator

    What a pleasant surprise from the Supreme Court.

    I got a very late start today and am neck deep in work, so this break is the first time that I have looked at any news of the day.

    I am curious about the dissenting opinions and how these justices sought to rationalize bigotry.

  133. 133.

    Calouste

    @Roger Moore: To me as a layperson it seems like this will have implications in a number of other areas as well. Take for example dress codes. As a very simplistic example, a company can’t punish women for not wearing skirts or men for not wearing ties because they wouldn’t punish the other gender for doing so.

  134. 134.

    Kent

    I am going to have so much fun concern-trolling my MAGA evangelical relatives after this ruling.

    “What’s even the point of voting for Trump anymore and taking all the economic ruin in the farming economy if he isn’t going to protect your religious liberty to discriminate against Trans kids?  I mean seriously, why even vote anymore?  None of it makes any difference.”

    Heh….

  136. 136.

    Kent

    @Calouste:@Roger Moore: To me as a layperson it seems like this will have implications in a number of other areas as well. Take for example dress codes. As a very simplistic example, a company can’t punish women for not wearing skirts or men for not wearing ties because they wouldn’t punish the other gender for doing so.

    They could still establish a dress code with your choice of skirts or suit/tie and just not make it sex-specific.  You gotta wear one or the other.   Just require “business professional” that meets any of these criteria.  If the occasional woman wants to wear a suit and tie, or the occasional man wants to wear a skirt and heels then shrug.  Most will not.

    It doesn’t automatically mean dress codes are gone and everyone will be wearing shorts and flip flops.

  137. 137.

    J R in WV

    @Sister Golden Bear:

    I was sure that the decision would go the other way.

    Congratulations on being so wrong in the correct way! So glad for you and your sisters and brothers today!!

    Party down, but stay safe! Masks and social distancing, or, what the hell, hugs and champagne!!

  138. 138.

    Roger Moore

    @Calouste: 
    Maybe, but I could see similar restrictions cropping up in a way that wouldn’t fall afoul of this ruling. For example, you could require everyone to wear either a suit and tie or a dress but not specify who has to wear which one. You’d still have a tight dress code while not discriminating on the basis of sex.

  140. 140.

    Roger Moore

    @Kent:

    And despite having the exact same law regarding sex discrimination on the books for a long time, most states still discriminate on dress codes, e.g. by allowing men to go topless in public but not women.

  142. 142.

    cain

    @Kent:

    I’m lucky that I don’t have any right wing relatives – being Hindu, we are all in on Democratic stuff. Although I do have one who has turned into one of those Modi supporters, and the rest of us argue with all the time – he’s the lone one.

    Like most people who gravitate into the right wing sphere – it comes down to listening to some jack ass who is selling fear and resentment.

  143. 143.

    Chetan Murthy

    @Kent:

    They could still establish a dress code with your choice of skirts or suit/tie and just not make it sex-specific.

    I could swear that I’ve read recently about old “mastodon” judges requiring female lawyers arguing before them to wear skirts, etc.  But I could be misremembering.

  144. 144.

    Brachiator

    From NPR and others

    Amid the tumult over police brutality allegations across the country, the U.S. Supreme Court on Monday refused to reexamine the much-criticized, modern-day legal doctrine created by judges that has shielded police and other government officials from lawsuits over their conduct.

    The Court let a big opportunity slip away. Could the Congress deal with this?

    More and more is riding on the outcome of the November election.

  145. 145.

    cain

    @Roger Moore:

    In portland, women are allowed to go topless. The problem is that they get a lot more attention than a man who goes topless – and not the good kind.

    To make that work, every woman would need to go out topless everywhere – until men get used to it as no big deal. Already our culture makes women’s breasts something mysterious and amazing. When it comes down to it, what makes men or women alluring is what is hidden, not what is fully exposed.

  146. 146.

    Chyron HR

    Trump: “I don’t know who Low-IQ Gorsuck is, I’ve never heard of him.”

    (Well, okay, that’s probably completely true, he has no idea who any the people he’s told to appoint are.)

  147. 147.

    Another Scott

    One for Steve in the:

    (The notion that this decision throws employment law into turmoil is something that only someone who has never litigated an employment law case would say.)

    — ListenHellboyHat (@Popehat) June 15, 2020

    Cheers,
    Scott.

  148. 148.

    Le Comte de Monte Cristo, fka Edmund Dantes

    @Chetan Murthy:

    You’re not misremembering. I’ve heard those stories from out in the sticks.

    I’ve never seen it done in practice, and if I did, I’m at that cranky, kinda cantankerous professional age where I can (and would) call them out on it right then and there without getting in a personal jam.

  149. 149.

    Le Comte de Monte Cristo, fka Edmund Dantes

    @cain:

    “…what makes men or women alluring is what is hidden, not what is fully exposed.”

    Which is why I’m a big believer in me wearing a thong on the beach, so that I’m not alluring at all…..

  151. 151.

    laura

    The majority’s decision is great for human rights – and I’m going to tip a drink tonight especially for Sister Golden Bear and my friend Paula.

    That said I’m going to get out the highlighter and red pen for the dissents – the Virgin Mayor of Keg City is likely buying time because he exists to dismantle the regulatory state and will happily deny Congress’ right to legislate in this area. Thomas’s dissent is likely to be in keeping with his rolling up the ladder after he was able to climb it. But that (Sc)Alito jibrone and his tome of an appendicized dissent – he’s laying the groundwork for overturning rights in future cases as is his specialty (see his teeing up Janus in his prior dissents attacking Aboud, a unanimous decision in place for only 40 years) in any area where individual rights interfere with the rights of corporations and their wealthy owners.

    Still, this is a decision worthy of joyful celebration – so let’s mark it and spread the joy.

  152. 152.

    Kent

    @Chetan Murthy:I could swear that I’ve read recently about old “mastodon” judges requiring female lawyers arguing before them to wear skirts, etc.  But I could be misremembering.

    They will probably still do that but rather than REQUIRING it overtly, the scuttlebutt from the clerks will be that if you want favorable consideration from X-judge you had best dress “professionally”

    Unwritten rules are often stronger than written ones.  And most people just go along.

  153. 153.

    Matt McIrvin

    @cain: Local laws allowing women to go topless are much more common than you’d think they are in the US, but if I recall correctly, a major problem is that the police keep arresting people for it anyway.

  154. 154.

    Brachiator

    @Chetan Murthy:

    I could swear that I’ve read recently about old “mastodon” judges requiring female lawyers arguing before them to wear skirts, etc.  But I could be misremembering.

    Yeah, rings a bell, but not important enough to do a search.

    But I also remember this recent fun story:

    A Florida judge is reminding lawyers appearing in remote court hearings through Zoom that they should not dress like they are poolside. Nor should the lawyers remain in bed during the hearings, according to Judge Dennis Bailey of Broward County, who posted his sartorial recommendations to the website of the Weston Bar Association.

  156. 156.

    Sister Golden Bear

    FYI, a profile of plaintiff Amiee Stephens, who transitioned at the age of 52.

    She spent most of her life trying to live as something she wasn’t, was fired for finally being herself, and spent the rest of her all-too-short life seeking justice.

    She died in May, and never lived to see that justice done.

    Thank you Amiee, may you rest in peace and power.

  157. 157.

    catclub

    @Brachiator: You may call it an opportunity. I think the SC ( or some number of members- what was the vote on cert?)

    viewed it as a thankless task they could avoid.

  160. 160.

    sdhays

    @Frankensteinbeck: Since the Court still seems to believe that Congress or state legislatures don’t really have any business outlawing corruption in politics (see Citizens United and McDonnell vs. US), I don’t think the record is really as good as 50/50 except when viewing from a very narrow angle.

  161. 161.

    Ken B

    @jonas: I keep wondering if these cities couldn’t send an invoice, and say ‘once you’ve paid, we will be delighted to assist with security.

    After all, Trump has the Secret Service and the venue has insurance and\or private security, so they not?

  162. 162.

    UncleEbeneezer

    @Sister Golden Bear:

    “But also, by making us invisible we don’t disturb their little world.”

    And that marginalization to the point of invisibility also not-so-subtly signals to bigots that it’s ok to perpetuate violence against said group because it’s unlikely they will face any consequences for doing so.  It’s not a coincidence that groups that have the least legal protections (Transgender, Undocumented) are also some of the biggest targets of violence.

    [Note: I KNOW you already know this, obviously, just adding that because I think it’s an important thing for the rest of us Cis/Het/White etc., people of privilege to remember.]

    Congrats on this great victory, and on that huge Black Transgender Lives Matter rally in Brooklyn (and other places).  It’s great to see people paying attention.

  163. 163.

    VeniceRiley

    This makes my lesbo heart so happy.  not that “‘m in any peril, but for my fellow Americans who are non-het- and or non-cis.

  164. 164.

    Mary G

    The Federalist Society is going to have to tighten up their vetting:

    Half-expect some white conservative evangelicals disappointed by Gorsuch today to point out he is an Episcopalian, and thus not a "real Christian." It is an amazingly widespread attitude among fundamentalists.— Ed Kilgore (@ed_kilgore) June 15, 2020

  165. 165.

    Kent

    @Mary G: He was raised Catholic but married a British wife and so apparently attends Episcopal church out of deference to her.  At least that’s what I read.  Apparently they thought they were getting another Scalia.

  166. 166.

    Barbara

    @rp: I honestly don’t know what makes Alito such a rigid thinker. He basically has the same pedigree as Gorsuch and he seems to have become radicalized the same way Scalia did. The world is drifting away from them as the architect of its hierarchies and safe boundaries, and like Bill Barr, he clearly, obviously, unquestionably sees that as a really bad thing.  For Scalia and Barr, the motivating force is religion.  Not sure about Alito.

  167. 167.

    laura

    @Barbara:  I honestly don’t know what makes Alito such a rigid thinker.

    Barbara, I think (Sc)Alito ascribes to the theory best explained by Frank Wilhoit – that there is an out group that the law binds but does not protect and an in group that the law protects but does not bind. If that doesn’t answer your question I’d go with the traditional answers of he’s either deeply closeted or he’s a garbage human.

  168. 168.

    bcwbcw

    Gorsuch left a time-bomb in the decision in that it does not overturn Hobby Lobby and he explicitly says essentially – “you dummies didn’t bring in religion or you probably would have got away with it,” specifically he says:

    “Separately, the employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions. We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society. But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. §2000e–1(a). This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, 188 (2012). And Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, codified at 42 U. S. C. §2000bb et seq. That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. §2000bb–1. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases. See §2000bb–3. But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too. Harris Funeral Homes did unsuccessfully pursue a RFRA-based defense in the proceedings below. In its certiorari petition, however, the company declined to seek review of that adverse decision, and no other religious liberty claim is now

    33 Cite as: 590 U. S. ____ (2020)
    Opinion of the Court before us. So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way. “

  169. 169.

    prostratedragon

    While I guess I can think of beneficial rulings that would surprise me more, this one seems so unexpectedly good that it’s hard not to tense up in fear of some hidden dagger that might appear. Still, one can now dare hope.

  172. 172.

    Don K

    @Sister Golden Bear:

    Hell, my husband didn’t know that we weren’t protected under federal or state law until today, and I had to patiently explain to him that this doesn’t do anything about housing discrimination.

  175. 175.

    Dan B

    @Sister Golden Bear: This ruling is a reminder that when I came out homosexuality was a mental illness so the case for firing people was simple.  And Trans was understood as transvestite not transsexual.  Neither of these, or similar beliefs, were in this decision.

    And there are many straight friends, neighbors, and family who will be very happy.

  176. 176.

    cmorenc

    @rp:  agree about Alito to the extent he deserves dishonorable mention as among top finalists for “worst justice” – but he will always come in behind Clarence Thomas (equally bad on substance as Alito) because Thomas was nominated specifically as the replacement for Thurgood Marshall when failing health forced Marshall’s retirement. Thomas is as grossly disgraceful a pick as Bush the elder could have come up with as Marshall’s replacement – a poisonous piss-ant compared to Marshall’s gigantic place in American legal history

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