October 7, 2019

Supreme Court Preview

Editor's note: We couldn’t be more proud of one of our teammates, Isaac Rose-Berman, who penned his first op-ed this week in USA Today: “How college students can bridge American divides: 'Study abroad' in Alabama or New York.” Please give it a read, and share far and wide!

On Monday, the new Supreme Court term begins. Notable cases involve “[abortion], federal protection for LGBT employees, the Trump administration’s decision to end the program known as DACA, and gun rights.” SCOTUSblog

Background:


The court will hear three cases involving whether the Civil Rights Act - which bars discrimination “on the basis of sex” - also bars discrimination based on sexual orientation and/or gender identity.

The court will also hear a case from Louisiana (June Medical Services LLC v. Gee) involving the requirement that abortion doctors have an agreement with a nearby hospital that would allow them to treat patients there. This case is similar to a 2016 case from Texas (Whole Woman’s Health v. Hellerstedt) that struck down such a requirement. SCOTUSblog

See past issues

From the Left

The left is worried that the Supreme Court will rule against gay and transgender rights, and narrow constitutional protections for abortion.

“As Congress remains deadlocked and the White House melts down, SCOTUS has become the only fully functioning branch of the federal government. It has taken on the role of policymaker, obligated to resolve many of the battles that engulf the political branches…

“As the new majority launches a conservative revolution in constitutional law, ushered in by Kavanaugh’s elevation to the bench, Democrats will learn, over and over again, how much damage Trump has inflicted on the progressive project. And they will be forced to contend with a wildly powerful judiciary poised to obstruct progressive reforms while shattering liberal precedent. The Supreme Court is not yet in the forefront of the 2020 race. By the time this term is over, traumatized Democrats may struggle to talk about anything else. Perhaps Democrats will espouse a vision of progressivism that is less reliant upon the judiciary for success. They may conclude that it is not healthy for a democracy to depend so extensively on the rule of five justices in Washington.”
Mark Joseph Stern, Slate

“The Supreme Court will hear three cases [this] Tuesday that ask whether it is legal to fire workers because of their sexual orientation or gender identity… The text of the [Civil Rights Act] bans only ‘sex’ discrimination, not discrimination based on a worker’s sexual orientation or gender identity. These cases ask whether concepts like sexual orientation and gender identity are so tightly bound to the concept of sex (meaning gender, not sexual intercourse) that a ban on sex discrimination necessarily protects LGBTQ workers. They are also the first big test of how the Supreme Court’s new majority will treat LGBTQ rights cases…

“In 1989, the Supreme Court held that gender stereotyping is itself a form of sex discrimination — a woman may not be fired, for example, because her bosses deem her too masculine in appearance or conduct. Yet…  attraction is ‘the ultimate case of failure to conform’ to a gender stereotype. Something very similar could be said about the stereotypical view that all people’s gender must align with the sex they were assigned at birth… Thus, if the Supreme Court holds that it is lawful to discriminate against gay or trans workers, it could upend the 30-year-old rule against gender stereotyping… [and] leave many Americans without recourse if they are fired because of their sexual orientation or gender identity.”
Ian Milhiser, Vox

Similarly, the abortion case “may be the Court’s first step in radically shifting its approach to abortion cases, gradually undoing the standards that have supported a constitutional right to abortion for the past 45 years… anti-abortion groups have used a barrage of state legislation to limit the number of abortions that actually take place, which has proved an effective alternative to outright bans on the procedure. The Supreme Court pushed back against this strategy in Whole Woman’s Health, calling out the Texas legislature for intentionally placing ‘substantial obstacles’ in the path of women who wanted to terminate their pregnancies. By agreeing to hear a similar case about what appears to be a similar law, the current Court has signaled that it may not continue this approach…

“If the Supreme Court is, indeed, open to altering its past approach, June Medical Services might be the beginning of a gradual, radical reorientation of abortion jurisprudence. This vindicates a long-standing strategy of the anti-abortion movement, which has purposefully teed up as many potential abortion challenges as possible in the states and lower courts, hoping that a few will make their way to the Supreme Court… [However] it’s unlikely that the justices will use June Medical Services, or any other single case, to summarily strike down Roe in some dramatic one-line declaration. What’s more likely is a gradual unwinding of abortion rights.”
Emma Green, The Atlantic

“The court also will hear a challenge to President Trump’s decision in 2017 to reverse President Barack Obama’s 2012 executive order protecting undocumented immigrants who were brought to the United States as children — the roughly 700,000 young men and women known as Dreamers…

“Had Mr. Trump simply said that he was rescinding DACA because he did not think it was a wise policy, he would have been on firmer legal ground. But because he was afraid of taking responsibility for destroying the Dreamers’ lives, Mr. Trump is trying to pass the job off to the Supreme Court by arguing that DACA was an illegal exercise of authority from the start. That’s simply wrong — not to mention suspicious coming from an administration that claims to have broad authority in other immigration contexts… When the justices hear this case in November, they ought to tell the president that if he wants to kill off a popular program, he’ll need to look the American people in the eye and own it.”
Editorial Board, New York Times

“The summary, released this morning, is a wild look into the president’s mind-set and approach to his job. It shows a commander in chief consumed by conspiracy theories, strong-arming a foreign government to help him politically, and marshaling the federal government in his schemes… The call is bizarre on several levels. First, the United States has legitimate interests in Ukraine, but Trump is using his conversation with that country’s president to pursue his pet, unsubstantiated conspiracy theories. Second, Trump appears—as has been alleged—to be engaging in a quid pro quo, asking Zelensky to assist him in pursuing those conspiracy theories, in exchange for help to Ukraine. Trump never puts it in plain terms—he’s too smart, and too experienced in shady business, to do that—but it requires willful blindness to miss what Trump is asking… Third, the call shows how Trump enlists the might of the U.S. government in his weird, personal, political schemes.”
David A. Graham, The Atlantic

“Trump’s defenders will say this evidence is all circumstantial. But circumstantial evidence is not weak evidence: it’s simply evidence based on the circumstances in which an act of wrongdoing is committed — such as the license plate of a car that speeds away from a bank just after that bank is robbed. Criminals are convicted on such evidence all the time. They will also say that there’s no explicit quid pro quo proposal here. But… ‘even when a corrupt deal is struck implicitly, the government can still prosecute extortion on a quid pro quo basis. Circumstantial evidence can be enough to prove a criminal exchange.’…

“In the absence of an explicit quid pro quo over restarting aid, the context and circumstances are what will become the focus of the investigation. There is enough here to support impeachment. Whether it is also enough to convince Republicans and lead to removal is another matter.”
Noah Feldman, Bloomberg

Some suggest that Congress “remove Trump from office, so that he cannot abuse incumbency to subvert the electoral process, but let the American people make the judgment on whether or not he gets a second term… Removing Trump from office for the remainder of his term would disable him from abusing presidential power again and protect the integrity of the electoral process from inappropriate interference. At the same time, letting him run for a second term would permit the American electorate to decide whether Trump, despite his attempt to subvert the system, should have another chance… Decoupling removal from disqualification lowers the stakes and changes the constitutional calculus. As long as Trump can run again, Republicans cannot hide behind a claim that they are [the] ones protecting voter choice by opposing impeachment.”
Edward B. Foley, Politico

From the Right

The right argues that a ruling for the gay and transgender employees would be legally incorrect and harmful to women, and hopes for a ruling allowing further abortion restrictions.

From the Right

The right argues that a ruling for the gay and transgender employees would be legally incorrect and harmful to women, and hopes for a ruling allowing further abortion restrictions.

The lawyer defending the funeral home’s firing of a transgender employee states, “[a ruling in favor of the employee] would create unfair situations for women in the workplace, in athletics, and even in places like women’s shelters that serve abuse victims. These aren’t hypothetical concerns. In Connecticut, two male athletes who identify as females have competed in girls’ track and field events over the past two years. In that stretch, those two athletes have won 15 state titles that once belonged to nine different girls. And in Alaska, an Anchorage commission has tried to force a women’s shelter to allow a man who claims a female identity to sleep in a common room with women who have been raped, trafficked, and abused.”
John Bursch, Detroit Free News

“In the statute, the word ‘sex’ refers to male and female. That makes sense because the law favors clear and objective standards… [in a recent case] Justice Ruth Bader Ginsberg underscored the biological element of sex differences… saying that ‘the two sexes are not fungible.’ Men and women are equal, but not identical or interchangeable. On the contrary, each sex is unique and has distinct biological features…

“Today, many who claim to be pro-woman are willing to surrender the hard-won rights of women under the law and destroy equal opportunity in athletics, education, and business by allowing men to compete in women’s sports, win college scholarships designed for women, and take advantage of female-only opportunities for women-run businesses. If we allow courts to re-write the law so that males can simply choose to be females, we will undermine laws that exist to ensure equality for women.”
Ken Paxton, Washington Examiner

“While its outcome obviously matters for the people immediately involved, the Supreme Court’s ruling on the meaning of the word ‘sex’ has direct and profound implications for other parts of federal law. It matters for the millions of girls and women affected by analogous laws such as those that ensure equal opportunities for education and athletic opportunities ‘on the basis of sex’... the entire premise behind sex-specific competition in sports is the simple scientific reality that, in general, males are stronger, faster and more physically powerful than females. As a result, if males and females are required to compete together, women will almost always lose…

“My heart aches seeing the struggles of males who believe they are females. Anyone struggling with his or her identity in this way needs love, support, compassion and friendship — and absolutely deserves protection from bullying and violence. Even so, a just, equitable and compassionate solution simply cannot require the redefinition of what it means to be a girl or a woman. Loving each other does not necessitate a spot on the women’s team, or a woman’s trophy.”
Anita Milanovich, USA Today

Furthermore, regarding one of the lower court decisions ruling in favor of a transgender employee, “The [dissenting opinion] said that ‘sexual orientation’ is not the same forbidden category of employment discrimination as sex is. This is an interpretation that ‘has been stable for many decades.’ As proof that the terms ‘sex’ and ‘sexual orientation’ are not used interchangeably, the minority cited the Violence Against Women Act, which forbids discrimination on the basis of both ‘sex’ and ‘sexual orientation,’ and the Hate Crimes Act, which imposes heightened punishment for harms inflicted because of both ‘gender’ or ‘sexual orientation’…

“Citing ‘the broader context of the statute,’ the majority acknowledged but disregarded the fact that Congress has ‘frequently’ considered adding, but has declined to add, ‘sexual orientation’ to the Act… [a concurring judge spoke of] ‘taking advantage of what the last half century has taught’ in order to correct ‘statutory obsolescence’ and ‘to avoid placing the entire burden of updating old statutes on the legislative branch.’ When and where, one wonders, were courts authorized to share the ‘burden’ of legislating?... It is depressing but clear that the Supreme Court needs to remind Congress — and the [lower courts] — that ‘statutory updating’ is Congress’ job.”
George Will, National Review

“The Court will decide the most consequential abortion case in a generation… [If it] reaffirms the 2016 Texas precedent [that blocked a similar law], then the message is clear — the Court is not substantially different. Even though he’s retired, the Court will still be Kennedy’s Court… By contrast, an opinion that actually reverses [the Texas decision] would demonstrate that the Court is willing to act with at least some degree of boldness and would greatly encourage state legislators who’ve passed hundreds of new pro-life laws in the past decade.”
David French, National Review

“If a dozen drones or missiles can do the kind of damage to the world economy as did those fired on Saturday—shutting down about 6 percent of world oil production—imagine what a U.S.-Iran-Saudi war would do to the world economy. In recent decades, the U.S. has sold the Saudis hundreds of billions of dollars of military equipment. Did our weapons sales carry a guarantee that we will also come and fight alongside the kingdom if it gets into a war with its neighbors?… the nation does not want another war. How we avoid it, however, is becoming difficult to see. John Bolton may be gone from the West Wing, but his soul is marching on.”
Patrick Buchanan, The American Conservative

Others note, “I’d hate to be a Democratic member of Congress trying to convince Joe Sixpack that this is a whole new ballgame. The transcript shows Trump being Trump and Ukrainian president Volodymyr Zelensky trying to ingratiate himself with the big dog by, for instance, mentioning that he stays at Trump hotels. Trump’s conversation is typically scattershot, wandering all over the field, leaving a reasonable listener puzzled about what the takeaways are supposed to be…

“I think Joe Sixpack’s response is going to be a hearty shrug. After all that has emerged about Trump so far, his approval rating is closely tracking Obama’s approval at the same point in his presidency. To get Mr. Sixpack’s attention you are going to have to do better than this.”
Kyle Smith, National Review

President Trump should be happy. As much as Warren is articulate, obviously intelligent, and energetically supported by Democrats, she would also be far easier to defeat than Joe Biden… Considering Trump's economy, the president is well placed to defeat Warren.”
Tom Rogan, Washington Examiner

A libertarian's take

“Why did Modi pick this moment to do something so radical? Violence in Kashmir had been trending downwards for the last year, after all. The main reason, besides President Donald Trump's alarming offer to mediate a settlement, is that he wanted a distraction from India's mounting economic woes. India's GDP growth dropped from over 8 percent to 5.8 percent over the last year, and it is widely expected to dip further. Just as ominous has been the crash in consumer demand. India's usual problem has been an insufficient supply to meet its voracious appetite for vehicles, cell phones, and other similar goods. But sales figures for all consumer goods have posted a precipitous decline, slamming businesses that are dramatically scaling back investments.”
Shikha Dalmia, Reason

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