How Trump lost two Supreme Court cases in one week
It is indisputable that Donald Trump had a bad week at the Supreme Court. Two decisions handed down this week shocked right-wingers who were convinced that they had built the best Supreme Court money could buy. Unfortunately for them, and fortunately for America, the law still matters. Justices Neil Gorsuch and John Roberts were convinced by strong arguments that appealed to their judicial philosophies. Trump was so disappointed, he mused on Twitter that the Supreme Court doesn’t like him.
I actually do think a supermajority of Supreme Court Justices find him an embarrassment to this country. Unfortunately, that does not mean they will repudiate him at every turn. We still have a dangerously reactionary Supreme Court that endangers the freedom and safety of many Americans, and so liberals cannot rest on our laurels thinking that the Supeme Court will save us next time.
The details of the cases are informative. In the case Bostock v. Clayton County, the Court held by a 6–3 majority that the Civil Rights Act protects LGBT Americans from employment discrimination. This is a huge victory for LGBTQ rights, possibly even more significant than the marriage equality decision in Obergefell v. Hodges since not all people want to get married, but everyone has to work.
This decision is especially galling to right-wingers because the majority opinion was written by Gorsuch, Trump’s appointee to the Supreme Court seat held open by Senate Majority Leader Mitch McConnell (R-KY) when he denied President Obama’s appointee Merrick Garland even a hearing. What disloyalty!
The arguments made by the attorneys for Gerald Bostock, the gay man fired by the government of Clayton County Georgia, were aimed directly at Gorsuch. Gorsuch has made his judicial philosophy clear: courts are not for making legislation, that is the role of Congress. As a result, courts must apply the law as Congress decrees.
But Gorsuch takes his view even further, as he detailed in his book A Republic, If You Can Keep It. Gorsuch believes, rightly by the way, that judges are not mind readers. As a result, court rulings should be based upon what the statute literally says, not on what the judge thinks the law’s drafters meant at the time.
This philosophy is where plaintiffs’ counsel got Gorsuch. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination “because of . . . sex.” It is likely that in 1964, Members of Congress were referring specifically to protections for women, not LGBT individuals, as Justice Alito correctly pointed out in his dissenting opinion. But to Gorsuch, what the Members of Congress likely intended matters not. What matters instead is what the law says. It does not say women are protected from employment discrimination. Instead, it says that employment discrimination because of sex is prohibited.
As Gorsuch explained in his opinion, “[i]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” To illustrate, he argued that if an employer “fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”
Gorsuch hinted in oral arguments at this conundrum. “Assume for the moment I’m with you on the textual evidence. It’s close, okay?” Gorsuch said. But he asked whether a judge “take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that — that Congress didn’t think about it.” In other words, what should matter to the judge is what the law says, not what are the potential ramifications of the decision. If Congress wants a different result, it should write a different law.
The other case handed down by the Court this week, Department of Homeland Security v. Regents of the University of California, the Court held in a 5–4 majority opinion written by the Chief Justice that the Trump administration had overstepped its bounds when it decided to terminate the Deferred Action for Childhood Arrivals (DACA) policy that protects the “Dreamers,” undocumented immigrants brought to the United States as children, from deportation. This ruling was another black eye to Trump given that he had made ending DACA such a central promise of his campaign.
Trump was even more aggrieved, calling for his supporters to re-elect him so he can appoint even more conservative justices. However, Roberts’s opinion evokes the Court’s earlier decision Department of Commerce v. New York which barred the administration from unilaterally including a citizenship question in the current census. Both these rulings have in common the fact that they were authored by Roberts, and that the decision was based upon Trump’s complete and utter incompetence. Not exactly a good reason for re-electing him.
At issue in this case is the Administrative Procedures Act (APA). That law addresses the fact that federal agencies have to figure out how implement the laws that Congress passes. These agencies are often referred to as “regulators,” and the rules they develop are called “regulations.” As a result, since they stop businesses from taking advantage of the environment, consumers, or others, they inspire particular ire among right-wingers.
The problem is that they are unelected. Purportedly, we live in a democracy. Congress has the authority to pass laws based upon the fact that its members are elected by the people. But nobody elected the regulators. So what gives them the authority to issue regulations?
The answer is made clear in the APA. Since Congress authorized the agencies to do something, they are simply acting within the scope of the authority Congress granted them when they determine how to implement that law. As long as the agency gives a strong justification for its action, and follows an open procedure to write the rule, courts will give agencies wide berth.
The problem here is that Trump, unsurprisingly considering his own lack of discipline, neither gave a sound justification for this action nor followed an open procedure. Presidents cannot rule by fiat, which is what Trump wants to do. Roberts is not saying that Trump cannot eliminate DACA. He is simply saying that Trump needs to follow appropriate procedures to do so, and provide a compelling rationale for his action. Otherwise, the Court rules, the action is “arbitrary and capricious,” something we abhor in a representative democracy.
If these explanations make you concerned about the ultimate fate of DACA, or leave you wondering if other protections against discrimination might not find such support, you have good reason. The Court’s decisions are narrow. Indeed, Gorsuch was clear that this ruling does not apply to bathrooms or any of the other myriad of issues raised in the battle for transgender rights. Similarly, Roberts made clear that if the President changes tack and follows proper procedure, DACA is a goner. As a result, leave the champagne corked.
The truth is that this is still a seriously right-wing Court. These rulings made clear that any hope that Brett Kavanaugh is a moderate is a pipe dream. In both cases, he took the hardest of hard lines, joining Alito and Thomas on the extreme right. Furthermore, where such ambiguity of language is not available for the lawyers, Gorsuch is an otherwise reliable vote for the right. As a result, we cannot view these decisions as some indication that the Court will protect us from the worst of this administration.
I have been arguing since the mid-1980s that liberals need to be concerned about the Supreme Court. All too often, my concerns have been pooh-poohed by friends who found the Democratic candidate insufficiently pure in his or her progressivism. The right did not make such miscalculations, however. As a result, we now find ourselves in a predicament. The Court’s decisions are long-lasting. I hope these recent decisions don’t make us believe that the appointment of right-wing ideologues to the Supreme Court is no longer a concern.