SCOTUS had a busy Monday (June 15, 2020) morning

The Supreme Court issued several noteworthy opinions and orders today. In what I think will be increasing order of interest on this board:

• The Court held that a pipeline could be routed through land that was overseen by the National Park Service but was not part of the National Park System. Justices Sotomayor and Kagan dissented -- a rare case where Justice Ginsburg joins the conservative side of a split opinion. Link

• The Court held that the Texas Court of Criminal Appeals did not properly consider whether inadequate assistance of counsel prejudiced the defendant in a capital-murder trial. This was a per curiam decision, meaning the Court ruled without even bothering to hear oral argument. This is typically done only in clear-cut cases, but it is noteworthy that three justices (Gorsuch, Thomas, and Alito) dissented. Link

• The Court declined to review a series of cases related to qualified immunity for police officers and other government actors. Justice Thomas dissented from one of the denials. Link (scroll to page 52) Many of the petitions had been pending for an extensive time. Most observers thought the Court would grant review in one or more of the cases, but was grappling with which ones to grant. Nobody really knows what to make of the denial of review, except that maybe SCOTUS is giving Congress as chance to act on police-reform. We will all have to stay tuned on that.

• The Court held in three related cases (authored by Justice Gorsuch) that Title VII's ban on employment discrimination "because of sex" protects gay and transgender employees. Justices Alito, Thomas, and Kavanaugh dissented. Link

• The Court declined to review California's sanctuary-state law. Justices Thomas and Alito dissented, but did not write an opinion. Link (scroll to page 5)

• The Court declined to review a group of Second Amendment cases. Justice Thomas dissented from one of the denials (link -- scroll to page 33). As with the qualified immunity cases, many of the Second Amendment cases had been pending for a long time. The speculation from all corners was that the Court would grant one or more of the cases, but now some are speculating that Justices Thomas, Alito, Kavanaugh, and Gorsuch all favored granting review (which takes 4 votes) but they had second thoughts because they feared they wouldn't be able to get Chief Justice Roberts' vote. If correct, this means that the 2020 election will determine whether the Second Amendment is limited (like all other Constitutional rights) or absolute.

 

Pretty much what everyone expected, outside of Kavanaugh declining to dissent on Andrus and Gorsuch joining/authoring the foray on Bostock.

It's hard to believe that Alito is already 70. His dissent on Bostock is so similar to what Scalia would have written, it's easy to see that he's the bedrock "talky" conservative for at least another decade or so.

Liberal states are going to make more of a run at qualified immunity legislation, and once something happens that actually puts it to the test, they'll take it up. There's going to be huge misinformation campaigns on both sides of the issue coming down the pipeline (this chart shows a rise in crime after it went into effect; this one shows a correlation to better policing outcomes, etc.).

It's also something to consider if Trump doesn't win reelection and Biden nominates replacements for RBG and Breyer. Roberts will almost certainly want to continue holding off on anything 2nd Amendment related.

 

This pretty much sums me up on the Bostock decision. At this point, we may as well just stop writing down laws. There's little point.

 

So Deez, are you saying democracy has failed us yet? If not, you must be really close to that, if written law is shown to be a farce. This is a question I have been mulling over for a couple of years.

I personally like the Constitution, rule of law, and the federal system, even if I don't understand it as well as you. However, we aren't following any of it. We still have a bit of the federal system operating, but state governments are more or less beholden to the Feds if they make an order.

I would love to reform things to get them back to working right, but I don't think there is the popular will to do that. At what point do we scrap it and start something else, hopefully that values freedom and private property.

 

Mona I’m feeling we would have to scrap this, whatever this has become, just to go back to what was designed in the beginning, ie, what this is supposed to be. But,,,, I do not believe we can eliminate greed, which I believe is the ultimate ‘quest for power‘ motivator and corrupts all of the power brokers today.

 

Franklin Graham ain't happy- Conservative Christians See 'Seismic Implications' in Supreme Court Ruling

 

I agree which is why I am becoming more agreeable to the idea of anarcho-capitalism which puts all areas of society under the market process. It wouldn't be full proof either, but I have no idea how you keep a government small. History has shown you can't.

 

I'm reluctant to draw conclusions like that from one court decision, but this should have been a slam-dunk. It involved an issue that the cultural Left cares a lot about, so I knew the liberal justices (who never cared what the written law said anyway) would rule the way they did. However, the idea that even a centrist justice would do the logical and rhetorical contortions they did to force this outcome is a disgrace. I've pretty much lost all respect for Gorsuch. He's dead to me.

 

If Gorusch and Kavanaugh are failures then Trump's administration has been mostly a failure too. His SCOTUS nominations were one of the main things being communicated as a positive.

 

Kavanaugh dissented on this one. Gorsuch is the Judas this time.

 

Kavanaugh dissented on the grounds that such important matters of policy should be left to the legislatures. Gorsuch/Roberts did an interesting run around the corner in saying that they should just read the statute as written and ignore what the authors meant at the time. I suspect Scalia would have broadened the reading but there has always been a conflict, however unacknowledged by some conservatives, between originalism and textualism, with some choosing one or the other depending on what they want the result to be. For example, most conservatives were fine with Scalia going back to the original intent of the writers of the constitution on the issue of private ownership of arms. A textual reading might have, with a stretch, come up with the same conclusion but it would not have read as persuasively as his history lesson did.

Alito argues for a reading as to the original intent of title vii and is quite correct in his opinion that they had no such intent at all re the meaning of the word SEX. So his conservative brothers Gorsuch and Roberts flipped methodologies. Roberts is interested not so much with his place in history books as with preserving the reputation and reverence for the court itself. Which is why they are not likely to undo roe v. Wade, however preposterous it and its progeny are as matters of law. Kavanaugh would say, based on this dissent, that abortion is an important policy issue and should be left to the legislatures. Which is why I am really liking kAVANAUGH

 

So are you saying that "sex" only means anatomical gender? To me, if that's the case they would have used the word "gender".

 

No. I'm saying that it means anatomical sex.

 

@Monahorns, I'll add this. For me the biggest fear isn't this decision (though I do fear it because of how far-reaching it will be). It's the fact that if a decision like this is possible and with 2 conservative justices being the decisive votes, the rule of law in the United States is extremely weak. We can elect leaders who will make compromises on language and pass laws that get codified. However, none of it matters, because we have a court that is willing to set it aside and kill those compromises. This sort of thing fosters massive and profound division much like the Dred Scott decision did by destroying compromise on slavery.

 

It also sets up discrimination lawsuits against Christian owned businesses and churches. Persecution will become a more consistent thing. Even though the letter of the law says you can't discriminate based on religion, they will charge that the Christian is being bigoted and thereby their decisions are protected by law.

 

Absolutely. There will be more lawsuits against Christians. And of course, this will force the transgender agenda in bathrooms, schools, showers, etc.

 

The Supreme Court defined it for us. Thanks Obama.

 

Actually the US Congress defined it and was quite clear about it, but who gives ****? Let's just nullify all that.