“Bostock is, undoubtedly, a major victory for LGBTQ rights — before Bostock, it was still legal for employers to discriminate on the basis of sexual orientation or gender identity in most states.
But it is unclear whether Bostock will entirely ban workplace discrimination on the basis of sexual orientation or gender identity. That’s because the Court is also considering whether to grant employers with religious objections to LGBTQ people an exemption from anti-discrimination laws.”
“Gorsuch is a vocal proponent of “textualism,” the belief that the meaning of a law turns on its words alone, not on the intentions of the law’s drafters.”
“In Bostock, the Court considered Title VII of the Civil Rights Act of 1964, which forbids employment discrimination that occurs “because of [an employee’s] race, color, religion, sex, or national origin.” Though there is little doubt that the people who drafted this law in 1964 did not believe they were enacting a ban on LGBTQ discrimination, the thrust of Gorsuch’s opinion is that the expectations of lawmakers in 1964 simply do not matter.
Only the text of Title VII matters. And, as Bostock explains at length, that text clearly prohibits employment discrimination on the basis of sexual orientation or gender identity. Gorsuch lays out why in just five crisp sentences on the first page of his majority opinion:
” In Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.””
“a 6-3 opinion. Both Gorsuch, a Trump appointee, and Chief Justice John Roberts, a conservative appointed by President George W. Bush, joined the majority. Roberts joined Gorsuch’s opinion in full and did not write a separate opinion. Neither man has shown much sympathy for LGBTQ rights plaintiffs in the past.”
“the sheer force of the plaintiffs’ textual arguments in Bostock appears to have weighed heavily on both men. At the very least, Bostock suggests that this conservative Supreme Court can follow the clear text of a law, even when that reading points in a liberal direction.”
“”Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the 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.””
“”Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.””
“The text of the law is the only thing that matters in Bostock. As Gorsuch concludes his opinion, “ours is a society of written laws,” and that means that “judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.” Because Congress “adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee,” the Court must hold that anti-LGBTQ discrimination in the workplace is illegal.”
“The Supreme Court’s decision to keep the Deferred Action for Childhood Arrivals program alive for now is a victory for hundreds of thousands of unauthorized immigrants who came to the US as children. But it’s a temporary victory — far from the permanent protections they have awaited for nearly two decades.
The unexpected decision may have assured DACA recipients that they can continue to live and work in the US free of fear of deportation for another day. But their victory is, legally speaking, quite narrow, and it gives Trump plenty of leeway to move forward with terminating the program, which has protected some 670,000 DREAMers.
The justices wrote in their opinion that Trump would have to articulate a more robust rationale for terminating the program. He’s already claiming on Twitter that he still wants to end DACA, but it’s not likely that he could do so before the presidential election or even Inauguration Day in 2021.”
“injunctions. When a court enjoins a particular defendant, they don’t just order that defendant to cease a particular behavior, they also can enforce that order with criminal sanctions or by imposing escalating fines until the defendant ceases their illegal conduct. A party subject to an injunction, in other words, can be squeezed so hard by court sanctions that they have no choice but to change their behavior.
Consider the case of Eric Garner, who was killed by a New York police officer’s chokehold in 2014. Although the NYPD had a formal policy barring chokeholds, it was frequently unenforced. The city’s Civilian Complaint Review Board received 219 chokehold complaints against NYPD officers in just one year.
If one of the victims of those chokeholds had obtained an injunction against the NYPD, then a court could have imposed strict sanctions on the city until police chokeholds ceased. And Eric Garner might be alive today.”
“As the Court’s lead opinion pointed out, non-unanimous juries are a practice rooted in white supremacy.
One justice took umbrage with that invocation of racism: Justice Samuel Alito. His dissent was the latest in a string of opinions bristling at the idea that racism still shapes many policymakers’ decisions today, and that the legacy of past racism still affects people of color. In the most noteworthy of those opinions, 2018’s Abbott v. Perez, Alito convinced a majority of his colleagues to write such a strong presumption of white racial innocence into the law governing racial voter discrimination that it is now virtually impossible for voting rights plaintiffs to prove that state lawmakers acted with racist intent.
Alito does not appear driven by broad skepticism of racial issues. While he has repeatedly lashed out at the mere suggestion that white policymakers may have been motivated by racism, he took a drastically different tone in Ricci v. DeStefano (2009). In that case, Alito wrote a lengthy concurring opinion suggesting that a cohort of mostly white firefighters were denied promotions due to a conspiracy between New Haven Mayor John DeStefano and a local black preacher.
In other words, when black or brown people have been on the receiving end of allegedly racist treatment, Alito preaches that we shouldn’t jump to such conclusions; yet in a case where white people were allegedly harmed, he wasn’t so cautious.
With his Ramos opinion, Alito continues to build a distinctive profile as a jurist: He has emerged as the Court’s foremost defender of white racial innocence.”
“Gorsuch offered a brief history of how the practice of allowing non-unanimous juries to decide a defendant’s fate is rooted in white supremacy. The delegates who drafted Louisiana’s 1898 constitution, Gorsuch argues, “sought to undermine African-American participation on juries” by allowing juries to resolve cases in a 10 to 2 verdict (the idea was that only a small number of black jurors were likely to serve on the jury in the first place).
Gorsuch also argues that Oregon’s use of non-unanimous juries “can be similarly traced to the rise of the Ku Klux Klan and efforts to dilute ‘the influence of racial, ethnic, and religious minorities on Oregon juries.’
Gorsuch’s decision to invoke this dark history produced a livid response from Alito. “To add insult to injury, the Court tars Louisiana and Oregon with the charge of racism for permitting nonunanimous verdicts,” Alito writes in the introduction to his dissent. He adds that “too much public discourse today is sullied by ad hominem rhetoric, that is, attempts to discredit an argument not by proving that it is unsound but by attacking the character or motives of the argument’s proponents,” and accuses the majority of his colleagues of engaging in such rhetoric.
Alito goes on to make a fair point. Though Louisiana and Oregon may have originally permitted non-unanimous jury verdicts to advance white supremacy, “both States readopted their rules under different circumstances in later years.” Louisiana, for example, originally provided for non-unanimous juries at an 1898 constitutional convention dominated by white supremacists. But the state “adopted a new, narrower rule” at a new constitutional convention in 1974.”
“Alito’s Ramos dissent also fits into a broader pattern. In multiple cases, including cases where there is clear evidence that modern-day lawmakers acted with invidious racial intentions, Alito treats the mere suggestion that anti-black or anti-brown racism may still play a role in policymaking with contempt.”
“Chief Justice John Roberts. Roberts’s race opinions are animated by his belief that any legal acknowledgment of race is odious, regardless of whether the purpose of a race-conscious law is to foster white supremacy or to tear it down. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts famously wrote in an opinion arguing that two race-conscious plans to desegregate public schools were unconstitutional.
Roberts’s form of color-blindness is often actively hostile to civil rights laws. Hence his decision in that school segregation case, and his later decision in Shelby County v. Holder (2013), which struck down much of the Voting Rights Act.”
“yet, there is daylight between Roberts and Alito. Though Roberts joined Alito’s opinion in Ramos, he did not join Alito’s Ricci concurrence.
nd Roberts broke rather sharply with Alito in a recent dispute about whether the Trump administration could add a question to the 2020 census form that would have discouraged many immigrants from participating in the census. Department of Commerce v. New York (2019) involved the Trump administration’s attempt to add a question to the 2020 census form asking whether each respondent is a US citizen.
The idea of adding a citizenship question to the main census form is opposed by prominent census experts in both parties. As top Census officials from the Reagan and Bush I administration warned, adding such a question “could seriously jeopardize the accuracy of the census,” because “people who are undocumented immigrants may either avoid the census altogether or deliberately misreport themselves as legal residents.”
The Trump administration made the implausible claim that it added this question to help enforce the Voting Rights Act — a statute this administration has shown little interest in enforcing. But, while the New York case was pending before the Supreme Court, leaked documents revealed that the administration may have had a very different motive. A late Republican strategist, Thomas Hofeller, who urged the Trump administration to include a citizenship question on the 2020 Census form, had determined that such a question would ”clearly be a disadvantage to the Democrats” and “advantageous to Republicans and Non-Hispanic Whites.”
In any event, a 5-4 Supreme Court struck down the citizenship question, with Roberts coming very close to accusing the Trump administration of lying. The claim that a citizenship question was needed to enforce the Voting Right Act, Roberts concluded, “rested on a pretextual basis.”
Alito began his dissent with characteristic anger at the idea that anyone would dare accuse the Trump administration of racism. In a preview of the sort of rhetoric he later deployed in his Ramos dissent, Alito wrote that “it is a sign of our time that the inclusion of a question about citizenship on the census has become a subject of bitter public controversy and has led to today’s regrettable decision” in the opening paragraph of his New York dissent. For Alito, it was fundamentally wrong to attack “the decision to place such a question on the 2020 census questionnaire … as racist.”
No other justice joined Alito’s dissent.”
“The greatest triumph of Alito’s efforts to write white innocence into the law came in Abbott v. Perez, where Alito wrote the majority opinion.”
” In 2011, Texas’s Republican-controlled legislature drew congressional maps that, as a federal court eventually determined, included some districts that were illegally racially gerrymandered. These maps never took effect, in large part because a different federal court determined that they violated the Voting Rights Act.
That left Texas in a bind. In early 2012, the state still had no lawful maps that it could use in its upcoming congressional elections, and the state’s primaries for these congressional races were just a few months away.
As a stopgap measure, a federal court in Texas drew interim maps that the state could use in its 2012 elections. Many of the districts in these hastily drawn interim maps closely resembled the racially gerrymandered districts drawn by the Texas legislature in 2011. The court, moreover, emphasized that “this interim map is not a final ruling on the merits of any claims” that some parts of the map were illegal racial gerrymanders.
The court, in other words, would allow Texas to use imperfect maps for one election only, given the risk that Texas would not be able to hold an election otherwise. But the court was also equally clear that it might strike down some of the state’s racially gerrymandered districts at a later date.
Nevertheless, in 2013, the Texas legislature passed a new law ratifying these interim maps as its own — including the districts that were still being challenged as racial gerrymanders. And Alito’s Perez opinion held that this new law reenacting the racial gerrymanders should be upheld.
“The primary question” in Perez, according to Alito, “is whether the Texas court erred when it required the State to show that the 2013 Legislature somehow purged the ‘taint’ that the court attributed to the defunct and never-used plans enacted by a prior legislature in 2011.”
According to Alito, courts must apply a strong presumption that lawmakers did not act with racist intent — even under the unusual facts that existed in the Perez case. “Whenever a challenger claims that a state law was enacted with discriminatory intent,” Alito wrote, “the burden of proof lies with the challenger, not the State.”
Having laid out this standard, Alito then swiftly absolved the Texas legislature of any racial guilt. “The only direct evidence brought to our attention suggests that the 2013 Legislature’s intent was legitimate,” Alito wrote in Perez. “It wanted to bring the litigation about the State’s districting plans to an end as expeditiously as possible.”
Alito’s argument, in other words, is that the 2013 maps weren’t enacted to preserve a racial gerrymander; they were enacted to shut down litigation challenging a racial gerrymander. And this distinction is sufficient to cleanse the state legislature of any allegation of racism.
It’s as if the school districts on the losing end of Brown v Board of Education (1954) had passed a new law recreating the same racially segregated schools that were challenged in the Brown litigation, but claimed that these segregated schools should be upheld because the new law had a legitimate purpose — to bring the litigation challenging public school segregation to an end as expeditiously as possible.”
“The common thread animating Alito’s opinions in Ramos, New York, and Perez is that he views allegations of racial animus with extreme skepticism.”
“Alito’s opinion in Ricci v. DeStefano.
Ricci was a difficult case involving the exam that New Haven, Connecticut used to determine which firefighters would be eligible for promotion to lieutenant or captain. The 2003 exam produced significant racial disparities. As Justice Ruth Bader Ginsburg laid out in her Ricci dissent, “the pass rate for African-American candidates was about one-half the rate for Caucasian candidates” on the lieutenant exam, and the “pass rate for Hispanic candidates was even lower.” On the captain exam, “both African-American and Hispanic candidates passed at about half the rate of their Caucasian counterparts.”
These results led to allegations that the test itself was racially biased, and the city eventually decided to disregard the examinations. After a cohort of firefighters who performed well on the exam sued, the Supreme Court voted 5-4 to reinstate the tests.
Alito joined the majority, but he also wrote a separate concurring opinion suggesting that the city decided to discard the exams, not because of a good-faith concern that the tests’ disparate impact on racial minorities arose from a flaw in the test, but because of a conspiracy involving the mayor and a prominent local black activist. Alito’s concurring opinion describes, at length, the relationship between then-Mayor John DeStefano and the Reverend Boise Kimber, whom Alito described as “a politically powerful New Haven pastor and a self-professed ‘kingmaker.’”
Alito quotes DeStefano’s former campaign manager, who described Kimber as “very good at organizing people and putting together field operations, as a result of his ties to labor, his prominence in the religious community and his long-standing commitment to roots,” and Alito also claims that “Rev. Kimber adamantly opposed certification of the test results—a fact that he or someone in the Mayor’s office eventually conveyed to the Mayor.”
The implication of Alito’s opinion, in other words, is that the tests were scuttled due to a corrupt bargain between the city mayor and a local black activist that DeStefano needed to turn out votes.
Alito’s concurrence hedges a bit. His ultimate conclusion is that “a reasonable jury” could conclude that the city tossed out the exams due to pressure from Kimber. But Alito’s Ricci opinion shows none of the caution — and certainly none of the anger — that Alito musters when someone suggests that a white policymaker might have been motivated by racism against people of color.
Alito raises his allegations of a racially motivated conspiracy, moreover, despite the fact that there is considerable reason to reject this theory of why the city tossed out the tests. Among other things, as Ginsburg points out in her dissent, “the decision against certification of the exams was made neither by Kimber nor by the mayor and his staff.” Rather, “the relevant decision was made by the [New Haven Civil Service Board], an unelected, politically insulated body.””
“if there were plausible reasons to suspect that invidious racial motives played a role in Ricci, there was far more reason to suspect such motives in Abbott v. Perez. Both cases required judges who were, at the very least, open to the possibility that racial animus tainted the government’s decisions.
Alito is not that judge.”
“Hobby Lobby was hugely significant as a matter of legal doctrine, as it effectively eradicated the old rule that religious objectors many not undercut the rights of third parties. But the Court’s opinion in that case appeared to be fairly limited in scope. Justice Samuel Alito’s opinion for the Court leaned hard into the fact that, rather than requiring all employers to provide birth control coverage directly to employees, the Obama administration could have achieved the same goal more indirectly.
Under this indirect approach, an employer could “self-certify that it opposes providing coverage for particular contraceptive services.” Once that happened, the government could make a separate arrangement with the insurer that runs the employer’s health plan, which would ensure that the employer’s workers receive coverage for birth control.
After the Obama administration took up the Supreme Court on its suggestion that it use this more indirect method of providing contraceptive care, some religious employers objected to the process the Supreme Court appeared to endorse in Hobby Lobby. The result was a second round of litigation, which culminated in the Zubik decision.
Yet with the Court apparently split 4-4 on the proper outcome in Zubik, that decision did little more than punt the case back to the lower courts. The broader question of whether employers can wield their religious objections to deny birth control coverage to their employees remains unresolved.”
“The Supreme Court ruled today that the Sixth Amendment right to a jury trial requires criminal convictions to be decided unanimously in most cases in state courts, overturning a previous decision from the 1970s.
Prior to Ramos v. Louisiana making its way up to the Supreme Court, 48 states and federal courts already required a unanimous conviction for most criminal charges. Louisiana and Oregon were both outliers, permitting 10-2 verdicts.”
“Supporting today’s ruling (in various degrees and for varying justifications) were justices Neil Gorsuch (who wrote the decision), Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Brett Kavanaugh, and Clarence Thomas. Opposing were Chief Justice John Roberts, Samuel Alito (who wrote the dissent), and Elena Kagan.”