It is often a troubling thing in some fashion when I see a strong Roberts Court opponent feel optimistic. But, there have been numerous lower court opinions defending the rights of GLBTQ people. Anti-trans laws in particular have been so blatantly wrong that you almost figured the legislators didn't think they would survive review.
I am pissed off but will grant there is room for optimism. On some level, you have to grant it. Two reasons. First, it is a survival mechanism to not just look at the bad side. Second, there is a standard rule that few things are all/nothing. A person being executed will be quite final. But, completely bad is hard to come by. We even survived four years of Trump.
The Supreme Court this term has repeatedly restrained itself. The reasons can be proposed. It might be a Roberts Court "picking your spots" and "playing the long game." The "wins" can even be long-term not so great for the winners ("wins" here being for liberals and/or sanity). It might be that the advocates are pushing for the fences too much. It might be some wariness about the criticism. It can be a range of things.
This is not to say that the Court is suddenly fine. Alito and Thomas showed themselves to be ethically tainted and Roberts showed himself unwilling to do basic things to restrain them or reassure the public on the integrity of the Court. Assurances lead to what? Only Kagan even deigned to attach explanations for recusal. Thomas and Alito could not even release their financial disclosures on time. Yes, mild credit that the rest did so, and we got a bit more clarity on things.
We also apparently didn't just make Alito upset. Roberts in his student loans opinion tossed in this:
It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary.
By the way, this is a bit rich coming from the conservatives. They regularly strongly dispute that such and such is something that the judiciary is supposed to be doing. They have every justification for thinking that. There are different ways for courts to be wrong. They can be wrong on the merits and for broader reasons. That is, trying to even decide things they do not have the power to do. This is a basic dispute.
So, what is the issue? A bit sensitive, are we? Roberts for Court also tosses this bit in, pressuring Kagan to grant the point:
We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception such misperception would be harmful to this institution and our country.
This is in an opinion that on bullshit grounds stripped President Biden of the power (at least in a certain fashion) to forgive student debt. Kagan for the liberals argues that:
In every respect, the Court today exceeds its proper, limited role in our Nation’s governance.
Now, it is unclear how much non-disparagement is going on here. What does that word mean? I think the assumption here is that the dissent is basically not (to quote Kagan) making it "personal." Some of the Thomas vs. Jackson stuff in the affirmative action case or the "head in the bag" dig by Scalia in the same-sex marriage case sounds a tad bit personal.
The word also means "of little worth." I think Kagan's dissent does some disparaging of the worth of the majority's argument. Still, she has to reassure the abuser here that they are reasonable sorts. Nothing personal, John! See? I said "respectively" dissent! There is a certain degree of unease in this whole affair. This is to reassure someone who compared Biden's use of power to the French Revolution.
[A curious aside. Alito had one more opinion, a short one to unanimously toss one of the student debt cases on standing grounds. It is a sort of little extra bit you toss to the junior partner. It is just one final example of his overall basic absence this term for whatever reason.]
Talking "disparagement," Sotomayor for the liberals didn't toss in a "respectfully" in her dissent in the wedding website case. The basic aspect of this case -- which the dissent for whatever reason didn't actually emphasize much at all -- is the whole thing is a sham. More evidence of that came out recently. To quote Kagan again:
It blows through a constitutional guardrail intended to keep courts acting like courts.
Sotomayor -- including in an extended dissent from the bench we are not allowed to listen to unless we are one of the handful who is there -- emphasized the harm to the GLBTQ community:
LGBT people have existed for all of human history. And as sure as they have existed, others have sought to deny their existence, and to exclude them from public life. Those who would subordinate LGBT people have often done so with the backing of law. For most of American history, there were laws criminalizing same-sex intimacy.
As Prof. Anthony Michael Kreis (who recently celebrated New Hampshire legislation to ban gay and trans panic defenses) noted:
There is no limiting principle in 303 Creative. Any service that has a remotely expressive component can result in a denial of service under anti-discrimination laws. Nobody is safe from bigotry in the public square.
My assuring thought (not that I am actually in any really affected) was that the opinion would cover limited ground. As he notes:
If courts could be trusted to be exacting in their review and restrained in determining what public accommodations have an expressive component and those that do not, the decision in 303 Creative might be met with a collective shrug-but therein lies the deep and worrying danger.
This is suggestive of why Sotomayor's dissent is so strong. The criticism often tosses an emphasis on how the people here are "Christians," which is again a rather depressing unfair burden to many Christians who do not agree with this result. Many do not feel the need to target gay people.
They also realize that if they serve the "public," well, they might be required to serve all comers. This is apparent even to many "conservative Christians" though that label is more accurate. Also, the rule here is not just limited to them though yes they have a lot of power in the current environment in various respects.
One more comment from the law professor who often is fun on Twitter:
One unfortunate downside of today's decision is that there will be much greater emphasis on civil rights boycotts and protests of businesses. The anti-cancel culture crowd, by chipping away at public accommodation anti-discrimination law, will fuel the social dynamic they decry.
There will be a lot more litigation to clarify what this case means. The case again is a sham case. The Supreme Court received thousands of requests for action and handed down under sixty full opinions. To use this barely there case with its law school hypo question and not provide much clarity on much more including what "speech" truly entails and a lot more is so much bullshit. It is a rank abuse of its power for policy preference.
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Today's the last day before the summer recess though as Steve Vladeck emphasizes in his new book they still are technically in session for the 2022 Term until the first Monday in October. The summer recess might start at noon but keep that in mind. Three summer order lists are usually scheduled. And, then there will be odds and ends.
We have a "clean-up" order list, including a chance for some justices to say stuff. A few cases are granted for full argument, including one involving the right of those under a restraining order to have a firearm.
These "clean-up" orders provide some behind-the-scenes tidbits. Sotomayor has a statement, for instance, flagging a concern. Other conservatives feel a need to respond to emphasize that she grants the matter is not ripe for review. Alito is all Alito ("This Court does not lobby government entities to make preferred policy decisions") in a counterproductive fashion. Okay, so you do, right?
Sotomayor has a tradition of flagging criminal cases that she feels are troubling, at times full dissents, and other times statements of concern that explain why she agrees with the denial but still is concerned. She used to do this at times for last-minute death penalty litigation but that seems to have stopped. She also has again taken on qualified immunity, which the Supreme Court seems to have left to Congress to handle after rejecting multiple cases a term or two ago to take it up.
Jackson (with Sotomayor) dissents from not taking a case involving Mississippi maintaining a Jim Crow regime that strips voting rights for those who commit certain crimes. Felony disenfranchisement was flagged as a problem in 2000. Many states have thankfully addressed the issue in various ways. The people of Florida were more recently blocked by a Republican-backed workaround to limit a ballot measure involving those with lingering fines. There is a lot more to do.
To quote Amy Howe on Twitter, one more notable bit:
SCOTUS denies review in Kincaid v. Williams, involving whether the Americans with Disabilities Act covers gender dysphoria. Alito (joined by Thomas) dissents from the denial of review, calling it a "question of great national importance that calls out for prompt review."
I am wary of when this Court will have to directly handle GLBTQ issues again. Roberts also announced a few court personnel retirements. I believe at least three members of the Court should retire. President Biden in an answer to a question on the affirmative action opinion noted that this is not a "normal court" but in an interview feared talk of expansion would politicize it. That bit got the appropriate degree of ridicule.
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What's next? Well, a couple executions are due in a month or so. Sen. Durbin assured us that ethics legislation will be the focus after the July 4th holidays. I foresee that being filibustered when it gets to the floor. To be continued, including Biden's workarounds. Keep on confirming judges!
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