Capital Tonight: Previewing Some Major Cases This Supreme Court Term

CAPITAL TONIGHT

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https://spectrumlocalnews.com/nys/central-ny/politics/2022/10/03/2--blockbuster--cases-before-the-supreme-court-this-session?cid=share_clip

What's with Gorsuch?

As widely reported, Justice Neil Gorsuch has decided to go maskless on the bench. Everyone else on the Court has been wearing a mask. Well, we can't say that about Sonia Sotomayor. She has avoided the bench and participated in oral arguments remotely. Notably, she is a diabetic. Good enough reason to keep her distance from the unmasked colleague.

Relatedly, it has become pretty well known among Supreme Court watchers that Gorsuch's colleagues find him annoying, self-righteous, arrogant, and not nearly as bright as he apparently thinks. One might say insufferable. Yes, I'll say it.

Actually, none of this is new. Shortly into his tenure, Court watchers described Gorsuch as an impudent upstart who was preaching to his veteran colleagues. He quickly took to telling them that he, not they, understood the role of a Supreme Court Justice. As one observer reported about an early Gorsuch opinion, "He instructed his senior colleagues, who collectively have a total of a hundred and forty years’ experience on the Court, about how to do their jobs." [See, How Badly Is Neil Gorsuch Annoying the Other Supreme Court Justices? by Jeffrey Toobin, The New Yorker, September 29, 2017.]

Another observed that "He’s the new kid in class with his hand always up. He is in his colleagues’ faces pointing out the error of their ways, his snarky tone oozing disrespect toward those who might, just might, know what they are talking about." [See, Trump’s Life-Tenured Judicial Avatar, by Linda Greenhouse, New York Times, July 6, 2017.]

Several years into his tenure on the Court, Gorsuch remains just as smug. Dissenting last year against the Chief Justice in "an unmistakably parental tone," Gorsuch "scolded the majority." John Roberts' opinion for the Court, Gorsuch sneered, "says so little about the Constitution’s terms because so little can be said that might support its ruling.” [See, Neil Gorsuch Couldn’t Stop Complaining About the Rest of the Justices Today, by Elura Nanos, Law & Crime, Mar 25th, 2021.] 

As one long-time Court watcher, well-known for her inside sources, put it recently, "Gorsuch, from the beginning of his tenure, has proved a prickly justice, not exactly beloved even by his conservative soulmates on the court." [See, Gorsuch didn't mask despite Sotomayor's COVID worries, leading her to telework, by Nina Totenberg, NPR, January 18, 2022.]

Gorsuch seems so cocksure of his own perspectives. Less pompous and more perceptive Justices understand how difficult and close the legal questions typically are that confront the Court. There are, almost always, strong legal arguments supporting each side of the controversies that come before the  Court. But Gorsuch, even when he agrees with a result reached by his colleagues, often feels compelled to write separately to instruct them, as well as any Justices on the opposing side, of his own superior and certain description of the case and analysis of the issues. These separate writings are oftentimes snide, and not nearly as persuasive as the leading majority or dissenting opinions.

Take the case where the Court struck New York's pandemic restrictions on church attendance. [Roman Catholic Diocese v. Cuomo (2021).] The unsigned per curiam opinion for the majority was measured and, even if one disagreed, thoughtful and certainly arguable. And yet, Gorsuch couldn't help himself. Despite his agreement with the majority decision to invalidate the state's restrictions, he had to write his own opinion, taking potshots at Chief Justice Roberts who dissented in the case. He accused the Chief Justice of "a serious rewriting of history" about Roberts's reliance on the 1905 Jacobson landmark in a recent opinion, supporting similar pandemic restrictions in California. [In that 100 plus-year-old landmark, Jacobson v. Massachusetts, the Court had upheld a mandate for smallpox vaccinations against constitutional "liberty" challenges.]

The Chief Justice, perceptibly irritated with his junior colleague, responded to "One solo concurrence." Roberts's previous reliance on Jacobson, he reminded Gorsuch, was for an axiomatic proposition that “[o]ur Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the states." "It is not clear," the Chief Justice added, "which part of this lone quotation [the unnamed Gorsuch] finds so discomfiting."

Gorsuch also seemed impressed with his own proof of religious discrimination in the New York restrictions. Some non-church activities were treated more favorably than religious ones, according to Gorsuch, for mere "secular convenience." He variously emphasized, for example, that, under the state's restrictions, "it may be unsafe to go to church, but it is always fine to pick up another bottle of wine." Apples and oranges anyone?

In Roberts's previous opinion that Gorsuch disparaged, the Chief Justice had explained that there are activities, like church attendance, "where large groups of people gather in close proximity for extended periods of time." And there are "dissimilar activities," which are understandably treated more leniently, "in which people neither congregate in large groups nor remain in close proximity for extended periods." The latter would, of course, include Gorsuch's picking up a bottle of wine. But, either disregarding or missing the Chief Justice's obvious distinction, Gorsuch concluded his solo opinion--i.e., no one joined him--by rephrasing his complaint about "edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques." Cute, but hardly analytical.

[The majority opinion, by contrast, did discuss secular activities that are more similar to church attendance.]

The point is not that the decision reached by the majority and Gorsuch was legally wrong--remember, these cases are close. Rather, it is Gorsuch's arrogant certainty in his own less-than-compelling arguments.

The point is likewise not about Gorsuch's taking politically conservative positions. Even when he takes positions that political liberals would favor, he can't seem to avoid the self-assured certainty in rather lame--and unnecessary--legal analysis.

Take his opinion for the Court in Bostock v. Clayton County (2020). Writing for the 6 to 3 majority--the 4 liberals at the time plus Roberts and Gorsuch--he concluded that the 1964 Civil Rights Act's prohibition against sex discrimination in employment necessarily prohibits discrimination against LGBTQ persons. It would have been enough for Gorsuch to simply rely on indisputable logic. That is, if a male employee romantically involved with a woman gets to keep his job, but a female employee so involved with a woman gets fired, the only difference is the employee's sex. Clear enough? Well, Gorsuch, a self-avowed disciple of the late Antonin Scalia, felt compelled to insist that the result was also dictated by originalism--i.e., the law's meaning when originally enacted.

Gorsuch spent most of his opinion arguing that "the ordinary public meaning of the statute’s language at the time of the law’s adoption" prohibited sexual orientation discrimination. The ordinary public meaning when the law was adopted in 1964 included sexual orientation? That's what Congress and the American people were thinking when discrimination on the basis of sex was prohibited almost 60 years ago?

In his dissenting opinion, Justice Samuel Alito threw Scalia's originalism right back at Gorsuch. Quoting Gorsuch's idol, Alito argued that a law's words should be given the meaning that "they conveyed to reasonable people at the time they were written." And as Alito explained, "the concept of discrimination because of 'sex'" hardly conveyed "discrimination because of 'sexual orientation' or 'gender identity'” at the time the Civil Rights Act was enacted in 1964. Gorsuch's effort to argue otherwise was "preposterous." Moreover, Gorsuch's updating the statute to reflect current values, as Alito noted, "actually represents a theory of statutory interpretation that Justice Scalia excoriated."

[An unsurprising disclosure: I do not subscribe to Scalia's interpretive methodology of originalism--whether argued by Gorsuch or Alito or Scalia himself. But I certainly do favor the result in the Bostick case, as well as the analysis on the basis of simple logic that does accord with current values and basic decency.]

Well, just maybe, Gorsuch was valiantly, if unpersuasively, enlisting originalist interpretation in the service of equal rights for LGBTQ persons because he so fervently supports them. Unfortunately. a consideration of his opinions in other cases quickly and firmly dispels any such wishful thinking.

Take his opinion in Pavan v. Smith (2017). At issue was the disparate treatment in Arkansas of same-sex married couples involving their children's birth certificates. The name of a mother's male spouse would be listed as a parent, regardless of any biological relationship to the child. But the same treatment was not extended to same-sex couples. The majority's unsigned per curiam opinion summarily invalidated the discriminatory treatment. The Court simply reaffirmed its right-to-marry decision in Obergefell v. Hodges (2015) which held that same-sex couples were entitled to marriage, and were so “on the same terms and conditions as opposite-sex couples.”

Gorsuch dissented. His complaint? While "Obergefell addressed the question whether a State must recognize same-sex marriages," he wrote, "nothing in Obergefell spoke (let alone clearly)" about birth certificates. To be fair, he specified a "birth registration regime based on biology," such as the one in Arkansas. But "this particular regime’s exceptions," as Gorsuch benignly referred to them, didn't make any difference to him. Not even the particular exception for non-biological parents at issue in this case, which just happened to be available to opposite-sex couples, but not to similarly situated same-sex couples. So was that lost on Gorsuch? Or did this unequal treatment simply not matter to him?

[Notably, even Chief Justice Roberts, who had dissented two years earlier in Obergefell, joined the majority opinion.]

Then there is Gorsuch's separate opinion in the cakeshop case. In Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), the Court--with a combination of conservative and liberal justices in the majority--ruled that Colorado had conducted an unfairly hostile hearing when it found the religiously objecting baker to be guilty of illegal discrimination for refusing to make a cake to celebrate a same-sex couple's wedding. In short, the majority of justices simply rejected the state's unfair hearing. They explicitly made clear that they were not approving the baker's--or any other business's--discrimination against same-sex couples. 

Gorsuch wasn't happy. He wasn't pleased with any suggestion that the baker had engaged in discrimination at all. He had to write his own concurring opinion. That baker, Gorsuch argued, "would have refused to create a cake celebrating a same-sex marriage for any customer, regardless of his or her sexual orientation." What? So there's no discrimination here because the baker wouldn't make a cake celebrating a same-sex wedding for an opposite-sex couple's wedding either?

Maybe Gorsuch didn't really mean that. But he repeated his argument. "Any suggestion that [the baker] was willing to make a cake celebrating a same-sex marriage for a heterosexual customer," Gorsuch noted, "would simply mistake the undisputed factual record." So he really was saying that. The baker wouldn't make a same-sex cake for gay or straight customers.

The point Gorsuch was clumsily trying to make was that the baker simply didn't want to express a certain message--i.e., a message approving same-sex marriage. (BTW, Gorsuch's senior colleague, Justice Thomas, made that argument much more clearly, in his own concurring opinion, in which he framed the issue in the case as one involving expressive freedom. Not sure why Gorsuch felt compelled to write another opinion trying to explain the same thing.) 

But whether the issue in the case was to be framed as involving discrimination or expressive freedom, Gorsuch himself could not deny that the baker's refusal necessarily resulted in the unequal treatment of same-sex customers. "To be sure," he admitted, the baker's "conduct promised the effect of leaving a customer in a protected class unserved." Well yes, isn't that the point? 

Not to Gorsuch. He just couldn't get passed the apparently brilliant decisiveness of his own argument. He repeated it again: "the baker [in this case] would have refused to sell a cake celebrating same-sex marriage to a heterosexual customer."

Does that sound like a justice opposed to sexual orientation discrimination? A justice sympathetic to LGBTQ rights? In this Colorado cakeshop case or in the Arkansas birth certificate cake?

So....

Insisting on going maskless on the bench. Instructing senior colleagues how to do their jobs. The "snarky tone oozing disrespect." The "unmistakably parental tone." The "prickly" behavior. Accusing the Chief Justice of being less than honest. Equating the conditions of church attendance with picking up a bottle of wine. Insisting that sex discrimination was publicly understood to include sexual-orientation discrimination in 1964. Arguing that equal rights for same-sex married couples did not extend to equal treatment with birth certificates. Arguing that refusing to serve a same-sex couple in celebrating their wedding was not discriminatory.

Okay, what's with Gorsuch?

Perhaps it's not much more than what a renowned, and somewhat conservative, Supreme Court scholar said to me not long after Gorsuch was appointed to fill the Scalia vacancy on the Court. "I didn't always agree with Scalia, but he was always nice to me and he was brilliant." Then he added, "But Gorsuch is a dummy."

It's Roberts' (somewhat less right-wing) Court (Part 2)

Source: AP/Dave Tulis/Larry Downing

In Part 1, we saw how Chief Justice Roberts joined decisions that saved so-called Obamacare and that protected immigrants. In those cases, he often authored the majority opinion himself, allying himself with his liberal colleagues to render decisions that triggered unconcealed outrage on the part of all or most of his conservative colleagues in dissent.

We witnessed exactly that last week in the DACA case (Department of Homeland Security v. Regents of the University of California, 2020) which was discussed in the previous post. Let's now turn to last week's other momentous decision, as well as an earlier related one that is, perhaps, even more revealing about the role and direction of Roberts as the primus inter pares.

LGBTQ Rights.  In a long-awaited decision--it took over 8 months from oral arguments on October 8, 2019--the Court ruled last week that the prohibition against "sex" discrimination in the Civil Rights Act of 1964 protects gay and transgender employees. The Chief Justice joined his 4 liberal colleagues, as well as one of the Trump-appointed conservative Justices, Neil Gorsuch, to whom he assigned the writing of the majority opinion.
Over the dissents of the 3 remaining Republican appointees [Thomas, Alito, and Kavanaugh], the Roberts-assigned/Gorsuch-penned majority opinion agreed with the fired employees that discrimination on the basis of "sex" necessarily covered discrimination against gays and transgenders. The crux of the argument [distilled from what I found to be a mostly insufferable 33 pages] was that the term "sex," as a matter of sheer linguistics and logic, does apply to gays and transgenders, even if that application was not within the underlying legislative intent of the law.
The 3 remaining conservatives wrote 134 combined pages of dissent. Justice Samuel Alito's seething 107-page opinion, joined by Justice Clarence Thomas, as well as the separate dissent of Justice Brett Kavanaugh, evinced frustration triggered not only by the Court's decision, but no doubt also by the loss of another Roberts vote to the liberals--this time, together with Gorsuch's vote as well. Bostock v. Clayton County, 2020.

[I feel compelled to add that, regardless of my unqualified agreement with the Court's result, I find much of the majority opinion unnecessary, unpersuasive, and perilous. The same decision could have been reached by simply sticking to the inexorable logic of what sex discrimination necessarily includes. (E.g., if a woman prefers men, that's ok. But if a man does, that's not? The only difference is the different sex of the person who prefers men.)
Beyond that, a far better majority opinion, in my view, would have embraced the overarching principle in prohibiting sex discrimination. Sex and sex-related characteristics are utterly irrelevant for most purposes. For like reason, most disparate treatment on those bases is born of bigotry or some other form of ignorance, rather than some justified reason--which is precisely what discrimination means.
On the other hand, Gorsuch’s "it’s clear from the original understanding of the plain terms of the statute" argument (I’m paraphrasing) can be expected to be used in the future to support reactionary results. The 6 votes his opinion received will surely be used as a strong endorsement of his insistent originalism—i.e., the “ordinary public meaning” of the terms of the law “at the time of the enactment" (his language)—about which he waxed and waned ad nauseam. This will be thrown back at the liberals--all of whom joined his opinion without a whisper of discomfort--when he and the other conservatives (including those in dissent in this case) use it in future cases to undercut past progress and block attempts to move the law forward.
I wish at least one of the liberal Justices had authored a separate concurrence making clear that they weren’t endorsing Gorsuch’s originalist interpretive approach. The need to do so should have been especially clear in light of Alito's dissenting opinion. Regarding what "sex discrimination" was understood to mean "at the time of enactment," Alito's dissent had the much stronger argument. Just consider this: would the law's prohibition of "sex discrimination" have been passed--"at the time of enactment" in 1964--if legislators were told that those terms protected gays and transgenders as well as women? Now ask the same question about progressive interpretations of countless other statutory and constitutional provisions. The liberals should at least have expressed their reservations about the originalism touted by Gorsuch.
Others have raised similar concerns. See e.g., Neil Gorsuch Lays Landmines Throughout LGBTQ Discrimination Opinion. https://abovethelaw.com/2020/06/neil-gorsuch-lays-landmines-throughout-lgbtq-discrimination-opinion/]

An earlier decision of the Court, three years before Bostock, was arguably more revealing about Roberts' view of his role as Chief Justice (as well as of Gorsuch's view of LGBTQ rights). Roberts' position in that earlier case took many by surprise because he had dissented two years before in Obergefell v. Hodges (2015).  In Obergefell, Roberts, together with the other Republican appointees-- except for Justice Anthony Kennedy--had rejected the notion that the Constitution guarantees same-sex couples the right to marry. But in 2017, Roberts broke with the Court's conservatives and, aligning with the Obergefell majority, helped reaffirm that landmark decision.
In a per curiam opinion, with the Chief Justice in the 6-3 majority, the Court invalidated an Arkansas rule that treated same-sex and opposite-sex spouses differently on their children's birth certificates. While the male spouses of biological mothers were entitled to be identified, female spouses were not. Repeatedly quoting from the Obergefell majority opinion--against which the Chief Justice had originally dissented--Roberts, together with his 4 liberal colleagues and Justice Kennedy, summarily granted review, reversed the state's supreme court, and struck the Arkansas practice on the ground that "the Constitution entitles same-sex couples to civil marriage 'on the same terms and conditions as opposite-sex couples.'”
Justice Gorsuch, this time writing a dissent, which was joined by Thomas and Alito, argued that, although the Obergefell decision held that "a State must recognize same-sex marriages," it said "nothing" about "a birth registration regime based on biology." In response, the Roberts-joined per curiam majority noted that opposite-sex spouses identified on Arkansas birth certificates need not be biological parents. Applying another line excerpted from Obergefell, the Chief Justice and his more liberal colleagues concluded that Arkansas has "denied married same-sex couples access to the 'constellation of benefits that the Stat[e] ha[s] linked to marriage.'” Pavan v. Smith, 2017.

Roberts had thus apparently decided that his role as Chief Justice included adhering to the Court's recent progressive landmark and opposing attempts to undermine it--regardless of his original position on the matter.

Death Penalty/Intellectual Disability. A similar pattern is evident in positions taken by Roberts in some recent death penalty cases. He had dissented in Moore v. Texas when that case came before the Court in 2017. The Court's majority ruled that the state court's judgment that the death row inmate was mentally competent to be executed "had no grounding in prevailing medical practice." Accordingly, the case was remanded for a determination "informed by the medical community’s diagnostic framework." Roberts dissented on the ground that the "independent basis for [the state court's] judgment" was adequate.
When the case returned to the Supreme Court two years later, the majority once again disapproved the state court's determination that the inmate was competent. This time, however, the Chief Justice broke with the conservative dissenters [Thomas, Alito, and Gorsuch] and joined the majority [which notably included Justice Kavanaugh]. Despite Roberts' own previous dissent, he acknowledged that the Texas determination "did not pass muster under this Court’s analysis last time" and, because "[i]t still doesn’t," he joined the majority's opinion to again reverse the state court's judgment. Moore v. Texas, 2019.

The Chief Justice joined his liberal colleagues in several other related death penalty cases in 2019. A few weeks prior to the Court's decision in Moore, Roberts signaled his break with his conservative colleagues in White v. Kentucky. In that early 2019 decision, he joined the majority's order [over the dissent of Thomas, Alito, and Gorsuch] to grant review and simultaneously, without argument, reverse a judgment of the state's supreme court--on the basis of the Court's earlier 2017 Moore decision.
Similarly, in Madison v. Alabama, also decided in early 2019, Roberts again broke with his conservative colleagues [Thomas, Alito, and Gorsuch]. In that case, he sided with the liberals to vacate the judgment of the state court that had approved an execution. He joined Justice Elena Kagan's majority opinion that the Constitution prohibits executing a person who is unable to understand why he's being punished, regardless of the particular intellectual disability he suffers, dementia or psychosis.
One more. In Murphy v. Collier, decided several weeks thereafter, the Chief Justice again sided with his liberal colleagues to halt to another execution. Over Justice Alito's dissenting opinion, which was joined by Thomas and Gorsuch, the Roberts-joined majority summarily enjoined Texas from carrying out the execution, at least until it first granted the inmate's request to be accompanied into the chamber by a Buddhist chaplain.

To be sure, Chief Justice Roberts' positions in the cases thus far discussed do not mean that he has transformed into an ideological liberal. But they do demonstrate a pattern of willingness to break with his more natural political allies on the Court and, moreover, to do so on some of the most highly charged issues of the day.
We'll look at a few more of these in the next and final post in this series.