SCOTUS Watch

Transgender Students

SCOTUS has its own form of "Friday Afternoon News Dump":

A little past 5:00 p.m. Friday — more than two weeks after the Biden administration’s new rule addressing sex discrimination under Title IX of the Education Amendments of 1972 went into effect — the U.S. Supreme Court finally ruled on a Justice Department request to limit injunctions against enforcement of the rule during litigation.

Sotomayor wrote the partial dissent for the liberals and Gorsuch. The opinions (a short per curiam included) are for whatever reason found on the Opinions page. 

As Chris Geidner notes:

On a 5-4 vote, the Supreme Court rejected DOJ’s request — keeping the rule completely blocked in 26 states and hundreds of schools in other states while litigation proceeds, despite the fact the almost all of the challenges only addressed three provisions of the lengthy rule that were aimed at providing protections for transgender students.

Chris Geidner has been on the case as this litigation has been ongoing. It looks like an abuse of injunctive relief arising from another multi-state policy litigation. 

Court reform should in part have this on its radar. Gorsuch has (if not always consistently) spoken about his concerns about injunctions in the past. His Bostock ruling suggests he might be more sympathetic on this issue than some others. 

Amy Howe also discusses the ruling.

(ETA: The per curiam emphasizes that it is "important" to note that the dissent agrees as to three things. But the federal government does not even challenge two. 

It grants the matter is complicated and it can be held up as it is litigated as to those two things. I'm unsure exactly why the partial dissent disagreed with them as to the third thing. Still, it's a limited matter.) 

Gorsuch's Book 

Justice Gorsuch has a new book out regarding overregulation. He is giving some interviews. For instance, it was reported he told supporters of Supreme Court reform should be careful. 

Gorsuch is not simply a knee-jerk jurist. He supports Native American rights, wrote an opinion protecting GLBTQ people, and applies his wariness of governmental power in the promotion of liberal causes from time to time. 

I still find his takes overly simplistic and cocksure. And, he is still conservative regarding many important issues, including abortion, the death penalty, and administrative law. He is often a fourth vote in the liberal cases, adding to his limited value. 

This criticism of his administrative law principles covers some of that ground, including how he wrongly mixes policy with judicial interpretation. Appellate judges will make policy. The rub is he makes bad policy and refuses to even grant he is making any. 

Another analysis targets his simplistic usage of history, including a Madison focus. Madison, a favored founder of different sides, isn't quite the median original understanding guy some take him out to be. Liberal or conservative flawed originalism is still just that -- flawed law office history. 

A third analysis argues that Gov. Walz (not a lawyer) helpfully provides a different mindset about civics and republican values. Perhaps so. But, there are wrongminded sentiments from all comers there.  

Petitions 

A website helpfully keeps track of petitions on the "shadow docket." Two notables concern voting rights in Arizona and another blockage of Biden's attempt at student loan forgiveness via statutory means in place to do just that.  

Support for Reform 

We can debate specifics. The public supports Supreme Court reform. Once you are there, the rest is detail, if admittedly critical details.  

Democrats and independents strongly support all of Biden's proposals. Republicans strongly support ethics and are more narrowly supportive of term limits and an amendment to override the immunity ruling. 

It is good on the merits and as a political strategy. Ultimately, the people's faith in the Supreme Court has diminished in recent years. They saw Thomas and Alito act unethically and at least concerning Thomas probably in violation of criminal laws (disclosure).  

The ultimate judgment here is that the Supreme Court has to be taken down a peg. If an institution, be it the Catholic Church (Reformation, anyone?) or a Supreme Court with a supermajority of Catholics, oversteps, reform is not a bad thing. 

Some talk about a threat to judicial independence. Liberty and license are not the same thing. Too much independence can lead to tyranny. 

We sometimes rely too much on the courts. The meaning of the Constitution is obtained by many institutions and the people themselves. The courts were a major aspect of the 1800 elections. 

Why not 2024?