Good morning. We expect SCOTUS orders at 9:30am and one or more decisions at 10am.
Major argued cases still pending: DACA, Title VII LGBT protections, abortion, Trump’s financial information, faithless electors.
Major argued cases still pending: DACA, Title VII LGBT protections, abortion, Trump’s financial information, faithless electors.
In SCOTUS orders, the court will take up two cases for next term, one about immigration detention and one about arbitration.
Court declines a 2A challenge to New Jersey's requirement that people show "good reason" to qualify for a gun carry permit. Thomas, Kavinaugh dissent.
Court declines a 2A challenge to New Jersey's requirement that people show "good reason" to qualify for a gun carry permit. Thomas, Kavinaugh dissent.
Justice Thomas also dissented from the denial of cert. in a QI case.
He again expressed his belief that the doctrine of qualified immunity should be revisited. This time noting that the precedent has strayed from the statutory text.
He again expressed his belief that the doctrine of qualified immunity should be revisited. This time noting that the precedent has strayed from the statutory text.
SCOTUS also declined to take up a preemption challenge to certain California sanctuary city policies. Those policies will now stand.
Justices Thomas and Alito would have heard the case.
Justices Thomas and Alito would have heard the case.
Several pending petitions for SCOTUS to hear 2A cases were rejected.
If my count is right SCOTUS cleared out all the pending 2A and all the pending QI cases. Seems like they're just not ready to commit.
Biggest surprise today is not taking up California's sanctuary city law. The U.S. was the petitioner, and we're likely to see it come up again.
Biggest surprise today is not taking up California's sanctuary city law. The U.S. was the petitioner, and we're likely to see it come up again.
Justice Alito's dissent, joined by Thomas and Gorsuch, in a death penalty case decided without argument is pretty strident.
We have Bostock. SCOTUS holds that an employer who fires an individual merely for being gay or
transgender violates Title VII. supremecourt.gov/opinions/19pdf…
transgender violates Title VII. supremecourt.gov/opinions/19pdf…
The SCOTUS website appears to be having a little trouble. More info to com.
So we have the first *page* of Bostock, but the website is hanging.
Alright, as we suspected might happen given his prior textual approach, Justice Gorsuch writes for the majority in Bostock that the prohibition in Title VI of employment discrimination on the basis of sex includes discrimination against gay and transgender employees.
Here's the break-down.
BTW, Justice Gorsuch follows the "Don't Be An Asshole" Rule and uses the female pronoun to refer to the trans employee.
Here's the key part of the maj. op.'s reasoning: "[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex."
And Justice Gorsuch illustrates that idea with a hypothetical:
BTW, we're still waiting on possible additional SCOTUS decisions today. We're not sure if we're getting more today, and the court website issue isn't helping. Stay tuned.
This is an interesting way of looking at it. Justice Gorsuch offers a hypo where employers redact all sex information on an application but included a check-box for "homosexual." Can the instructions for such a box be written without referring to sex? He says "It can't be done."
The SCOTUS website hiccup this morning should be a warning sign that the court needs to step up its game on decision days.
There's intense interest in the pending cases. The website crash this morning started exactly at 10am.
There's intense interest in the pending cases. The website crash this morning started exactly at 10am.
Justice Gorsuch also notes that it's just not true that people wouldn't have understood Title VII to protect against discrimination on the basis of sexual orientation when it was passed. Citation.
If you're having trouble getting the Bostock Title VII decision off the SCOTUS website, I uploaded a copy here: drive.google.com/file/d/1fEHOiy…
Read this thread on Bostock:
Okay, just to tie this thread off, we did have another SCOTUS decision today in a pipeline permitting case, if that's your thing. supremecourt.gov/opinions/19pdf…
Next SCOTUS decision day is Thursday.
We're still waiting on DACA, abortion, Trump's financial information, and faithless electors.
We're still waiting on DACA, abortion, Trump's financial information, and faithless electors.
Justice Alito's dissent in Bostock has a great deal of "not my Scalia!" (See attached pic.)
There have been a few judges nominated by GOP presidents at the circuit courts who have also tussled over "appeal to Scalia" arguments when debating statutory language.
There have been a few judges nominated by GOP presidents at the circuit courts who have also tussled over "appeal to Scalia" arguments when debating statutory language.
Some people are asking about religious consequences for Bostock. There wasn't a live question on that issue before SCOTUS (one petitioner declined to seek review of a RFRA claim).
But the maj. op. notes that there's a statutory carve-out, the 1A in certain cases, and RFRA.
But the maj. op. notes that there's a statutory carve-out, the 1A in certain cases, and RFRA.
Good question. We don't actually know.
In an ordinary term, SCOTUS finishes giving decisions by the end of June, and sometimes they add more than one decision day in the final weeks so it can finish on time.
But this year because of COVID-19 they heard cases into May. 1/2
In an ordinary term, SCOTUS finishes giving decisions by the end of June, and sometimes they add more than one decision day in the final weeks so it can finish on time.
But this year because of COVID-19 they heard cases into May. 1/2
So we just don't know when SCOTUS is going to finish issuing decisions, nor do we know how many extra decision days may be added before the end.
It's up to SCOTUS, and they don't announce it more than a week in advance.
It's up to SCOTUS, and they don't announce it more than a week in advance.
Justice Alito, dissenting, confronts this argument, but says discrimination against those in interracial relationships was "a core form of race discrimination" whereas discrimination against those in gay relationships is just not a sex-based distinction (he says).
Ugh, there's a tweet in this thread that refers to "Title VI" instead of "Title VII," and it's clear I'm talking about employment discrimination and oh hell, let's just leave it alone, and thanks for nothing, Jack.
There is one mention of pride in this Pride Month gay and trans rights decision, and it comes in Justice Kavanaugh's concluding paragraph:
(It's a gracious paragraph in defeat, but this isn't just an achievement for gay and lesbian Americans, but also for straight people who think employment discrimination against gays and lesbians is bad, both for the individuals discriminated against and society in general.)
Journo/commentator note when discussing the Bostock decision: stop talking about originalism. This isn't a constitutional decision; it's a statutory one.
The word you're looking for is "textualism." At least don't sound like a moron.
The word you're looking for is "textualism." At least don't sound like a moron.
The Gorsuch vs. Alito opinions are struggling over *textualism.*
And the debate basically breaks down over whether the proper textualist approach is "what do words mean" (Gorsuch) vs "what do words mean as intended by Congress or a reasonable person at the time" (Alito).
And the debate basically breaks down over whether the proper textualist approach is "what do words mean" (Gorsuch) vs "what do words mean as intended by Congress or a reasonable person at the time" (Alito).
Gorsuch is saying that if you fire a dude for being into dudes, you've made a sex-based distinction so it's covered by Title VII.
Alito's response is maybe/maybe not now, but for sure Congress wouldn't have seen it as a sex-based distinction in 1964, so it's not covered.
Alito's response is maybe/maybe not now, but for sure Congress wouldn't have seen it as a sex-based distinction in 1964, so it's not covered.
Gorsuch is taking a very firm: "the statute says what it says and that's it."
Alito is as firmly responding "we're applying the statute as written, but only as cabined by the intent of Congress at the time."
Alito is as firmly responding "we're applying the statute as written, but only as cabined by the intent of Congress at the time."
