Order Day and Opinion Day #1

We are getting to the end of June though with May arguments (perhaps last held in a case where O'Connor was replaced by Alito, who was the fifth vote in Hudson v. Michigan, involving no knock warrants), we might have July opinions.  Which again was a thing back in the day when there were more opinions. So, we are down to some of the final big Supreme Court cases.  And, an order that we almost sixty pages and a decision over one hundred and seventy [Alito's dissent had multiple appendixes that appears to have helped made it unable to load the thing for a while]  shows the final countdown, so to speak, has begun.

SCOTUS granted two cases for oral argument, but that was largely a minor footnote though the immigration case's docket page has a "huh" where briefing is not done electronically for easy access. A repeatedly reconsidered case involving California not assisting federal immigration agents [this sort of thing can inhibit liberal administrations too]  was finally simply not taken.  The order list was long largely because the justices decided to send back a death penalty case that was considered by them repeatedly in conference though Alito and the other High Federalists (Gorsuch and Thomas here) were somewhat pissed off by it. 

Qualified immunity is a big thing; they don't seem to want to take those cases (though two, one involving Kim Davis of the blocking same sex marriages fame, are pending for some reason) either.  They might be looking toward Congress and that might be the best way to address the situation.  Thomas questioned, in his own fashion (legal minds on Twitter suggested of mixed value to those against the practice), QI in one case, a literally "dog bites man" case.  He also (without Alito; Kavanaugh joined him in part) dissented in not granting a carry case, one that some thought was a good replacement for the mooted New York case.  The Court in fact took NONE of the ten Second Amendment cases.  Kavanaugh in the New York case suggested he thought the lower courts were not appropriately respecting it and you figure he would join with three others to grant cert. on something.  But, it looks like they figured Roberts would not go along.

So, there was some major news even before 10AM.  I came back to my computer a few minutes after and saw no opinion on the website. What gives?  What gave was that there was difficulty downloading the thing. Eventually, we got the news that in the GLBT employee cases (note that two of the three plaintiffs died during litigation) that the employees won and Gorsuch wrote a textual ("textual") opinion noting how obvious (apparently many courts were confused for decades) it is that "sex" discrimination in the law applies here too.  Roberts made six.

A lot to unpack here. Note that as part of the Friday news dump last week, we had the HHS hand down an anti-trans rule that now comes off as rushing to get things in before SCOTUS made it all seem more problematic than it already was. Happy Pride Month!  Second, back in the day, Linda Greenhouse parsed the nature of the how the questions were crafted and the cases split up.  The idea being maybe there was some move to allow them to find some common ground, maybe split the baby.  Not sure how that really made much difference in the final result.  Third, Alito upset again:

The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society.

Well, the "inevitable" part is a case of the asshole having a point. Gorsuch's opinion is appealing in various ways but the end result here as I suggested above is not so bloody obvious.  Kavanaugh dissented separately, without the vitriol and appendixes, mixing in some nice words about GLBT and how they might succeed in Congress, but that an ordinary understanding of the text rule here really puts change in Congress' court.  That isn't totally off, but the law has developed enough to pass him by.  Yes, ideally, Congress would have (and still should) pass some sort of ENDA legislation to address GLBT discrimination, but lower courts and agency developments (as Chris Geidner has noted) repeatedly has reached that point by now as well. 

Gorsuch thus is right in the end probably (and Alito probably right that "it's obviously sex discrimination" seems to have constitutional implications too), but only because over the years, the law and society had a changing understanding.  This is true in major statutory matters as RBG said in one separate opinion sometime back, probably with an eye partially on these cases.  The appeal to textualism (sometimes seen as a conservative and/or originalist thing and original meaning was cited by Gorsuch) is therefore somewhat dubious.  Both sides appealed to it and had different answers.  Gorsuch handwaved the bathroom issue that bothered various justices (including Sotomayor) as not at issue.  He also referenced possible religious liberty (including RFRA, something else for Congress to address) grounds -- another battle still to be fought  a lot more -- but noted it was not at issue here.

(The ERA also came up.  One thing that was raised was the idea that sex discrimination not being sexual orientation discrimination was simply not in the minds of the drafters.  But, he noted there were some that brought it up, even same sex marriage -- thought that was more in the age of cellphones [Alito] -- during the ERA battle.  Note that Virginia claimed to be the 38th vote to ratify and both sides -- for and against -- have pending litigation on that.  A word on that too -- just how much of a reference here at the time is enough for something to be on the minds of the people involved?  See also, interracial marriage in the 1860s.)

There was also various inside the cathedral musings here, including wondering if Roberts originally had the opinion but Gorsuch did not join or was up in the air and used that to make sure Gorsuch had a narrow opinion or was the sixth vote to assign it to him or ... After his crude same sex marriage dissent from the bench -- and even there he let the cases pend for months so that same sex marriage was established in multiple circuits, much to Scalia and Thomas' annoyance -- Roberts seemed to admit the Rubicon was crossed here.  He joined without comment a per curiam for which three justices (led by Gorsuch) dissented, for example.  The religious liberty issue, the "can they not sell them cakes" etc., will be something to look for there on that front.

People also suggested that we should not be too happy since there are various other cases (DACA, abortion) that are not likely to come off as favorable.  Plus, Gorsuch's textualism and assurance can have bad results. Sure.  One law professor type who said "told ya so" on his endorsement of his "buddy" was a bit much there.  It is a conservative Court -- let's remember that, even if there will be victories and defeats that are not as bad as we might think.  Let's still honor the victories.  As to DACA, we have another big November energy opinion since the clock is almost running out there, especially if the opinion leaves open some means to delay a bit more. So, I wonder HOW bad things will be there.

(Another running out the clock watch involves the federal death penalty cases that the feds won on a split decision in the D.C. Circuit and is pending for review.  That being the rule that the feds need to use, per statute, the means used in the state of execution.  The last federal execution was early this century.  Would five justices vote to summarily affirm or allow the executions even in the face of four liberals voting to grant?)

There was another opinion, a 7-2 (Thomas; Sotomayor with Kagan in dissent ... RBG didn't join part of the majority)  that held the Forest Service has the power to grant a pipeline right of way  in the case at hand.  It has notable financial and environmental effect though the split suggests not deemed too hard of a decision.  The oral argument was in February.  It took quite a while to show up on the website, SCOTUSBlog first reporting being informed about it around a half hour or more in, before it posted on the website.  Usually, these opinions are posted a few minutes apart. Things were a bit different today.

Finally, would have been nice to have opinion announcements telephonically today, huh?  Chance to hear Alito growl.  Seriously, that has been a concern of mine for a while and glad to see it get some attention today on legal Twitter.

Let's see what Thursday will wrought.

ETA: People who appeal to the text as is if is some obvious path seem somehow to suggest the other side just make stuff up.  But, the split in the main opinion here show that textualism turns out to be not as simple as all that. What makes the result here easier to reach is that it is not simply a match to the text, but the purpose behind it and years of understanding.

As noted in this article, the idea that sex and sexual orientation is separate is misguided. Thus, invidious discrimination over the years here was on a basic level based on assumed proper roles of men and women.  Covered more in a comment (Michael Dorf) here, the result here -- as was those involving sexual harassment and so on that might not have been deemed "because of sex" originally -- the result supports the purpose of the law too.

To obtain a correct result when applying text, statute or constitutional, the complexity of the text must be examined. This tends to, especially in hard cases (and the opinion does nod in this direction at one point), take into consideration various interpretative methods.  A result that seems to clash with text is a red flag, but the same applies to a result that clashes with long precedent or basic understanding of the purpose of the text.

They work together and worked together here. This is the path to avoid absurd results that appear in some sense to literally fit.