Author Topic: Gorsuch, the USSC and the rights of LGBTQ Employment Rights  (Read 2393 times)

0 Members and 1 Guest are viewing this topic.

Offline FJAG

  • Army.ca Veteran
  • *****
  • 269,575
  • Rate Post
  • Posts: 3,187
  • Ex Gladio Justicia
    • Google Sites Wolf Riedel
So did anyone have any money on Gorsuch joining Roberts and the "Liberals" on the US Supreme Court in holding that "sex" in Title VII of the U.S. Civil Rights Act also applies to LGBTQ individuals?

Quote
Why Trump's Supreme Court appointee Neil Gorsuch just protected LGBTQ rights

By Ariane de Vogue, CNN Supreme Court Reporter - Updated 5:31 PM ET, Mon June 15, 2020

(CNN)Justice Neil Gorsuch, President Donald Trump's first nominee to the Supreme Court, delivered an opinion Monday that will change how more than 7 million LGBTQ individuals will live and work in the United States.

It is a watershed moment from an unlikely author that means gay, lesbian and transgender workers are protected by federal civil rights law. It is a stunning defeat for judicial conservatives who worked to ensure Gorsuch's nomination and Republicans, including Donald Trump, who stymied President Barack Obama's nominee for the Supreme Court, liberal Merrick Garland in 2016.
The ruling puts Gorsuch in the history books.
Title VII of the Civil Rights Act, Gorsuch wrote, which bars discrimination "because of sex," also covers claims based on sexual orientation and gender identity

...

https://www.cnn.com/2020/06/15/politics/neil-gorsuch-supreme-court-lgbtq-rights/index.html

Good on ya', mate!

I'm waiting for Trump's tweet on this.

 :cheers:
Illegitimi non carborundum
Semper debeatis percutis ictu primo
Access my "Allies" and "Mark Winters, CID" book series at:
https://sites.google.com/view/wolfriedel
Facebook at https://www.facebook.com/WolfRiedelAuthor/

Offline Good2Golf

  • Directing Staff
  • Army.ca Legend
  • *
  • 253,640
  • Rate Post
  • Posts: 11,982
  • Dammit! I lost my sand-wedge on that last jump!
Re: Gorsuch, the USSC and the rights of LGBTQ Employment Rights
« Reply #1 on: June 15, 2020, 20:18:09 »
It shouldn’t be crazy, he’s already commented.

Trump called the decision "very powerful" and acknowledged it was surprising to some. “They've ruled and we live with the decision," Trump said. "We live with the decision of the Supreme Court."

Offline FJAG

  • Army.ca Veteran
  • *****
  • 269,575
  • Rate Post
  • Posts: 3,187
  • Ex Gladio Justicia
    • Google Sites Wolf Riedel
Re: Gorsuch, the USSC and the rights of LGBTQ Employment Rights
« Reply #2 on: June 15, 2020, 20:32:13 »
It shouldn’t be crazy, he’s already commented.

Trump called the decision "very powerful" and acknowledged it was surprising to some. “They've ruled and we live with the decision," Trump said. "We live with the decision of the Supreme Court."

I see that. It's very interesting and almost hearkens back to when he was a Democrat.

Let's wait for a few more days for his base to tell him how dissatisfied they are with the decision.

Quote
Some commentators argued that the ruling may serve to destabilize the shaky coalition between Trump and his evangelical voters, based largely on the promise of conservative judges like Gorsuch delivering socially conservative rulings. “The whole point of the Federalist Society judicial project, the whole point of electing Trump to implement it, was to deliver Supreme Court victories to social conservatives,” tweeted National Review contributor and Arc Digital columnist Varad Mehta. “If they can't deliver anything that basic, there's no point for either. The damage is incalculable.”

https://www.forbes.com/sites/andrewsolender/2020/06/15/they-ruled-and-we-can-live-with-their-decision-trump-reacts-to-very-powerful-supreme-court-decision-protecting-lgbtq-workers/#3011e1735cf3

 :cheers:
Illegitimi non carborundum
Semper debeatis percutis ictu primo
Access my "Allies" and "Mark Winters, CID" book series at:
https://sites.google.com/view/wolfriedel
Facebook at https://www.facebook.com/WolfRiedelAuthor/

Offline Brihard

  • Army.ca Fixture
  • *****
  • 307,080
  • Rate Post
  • Posts: 5,601
  • Non-Electric Pop-Up Target
Re: Gorsuch, the USSC and the rights of LGBTQ Employment Rights
« Reply #3 on: June 15, 2020, 20:33:53 »
Sometimes people in positions of power simply do the right thing, regardless of the expectations of the masses or perhaps of those who orchestrated their appointment. Good on Gorsuch for being on the right side of history.

EDIT: Aaaaand, I should have known better than to go glance at it, but a bunch of the American right wing commentariat on Twitter are predictably unhinged over this. It's amusing but also frightening.
« Last Edit: June 15, 2020, 20:40:31 by Brihard »
Pacificsm is doctrine fostered by a delusional minority and by the media, which holds forth the proposition it is entirely possible to pick up a turd by the clean end.

Offline Xylric

  • Member
  • ****
  • 7,295
  • Rate Post
  • Posts: 196
Re: Gorsuch, the USSC and the rights of LGBTQ Employment Rights
« Reply #4 on: June 15, 2020, 20:42:49 »
I'm amused because it is entirely a no-nonsense decision, just going by the cases used to evaluate and render it. It's perfectly reasonable, so I am baffled as to why it is even considered a shock.

Offline Brihard

  • Army.ca Fixture
  • *****
  • 307,080
  • Rate Post
  • Posts: 5,601
  • Non-Electric Pop-Up Target
Re: Gorsuch, the USSC and the rights of LGBTQ Employment Rights
« Reply #5 on: June 15, 2020, 20:48:52 »
I'm amused because it is entirely a no-nonsense decision, just going by the cases used to evaluate and render it. It's perfectly reasonable, so I am baffled as to why it is even considered a shock.

Because Gorsuch was basically pushed by a social conservative movement. He was expected to deliver consistently socially conservative decisions. Stuff like this will significantly undermine Trump's USSC appointments in the eyes of, and may disenchant, a lot of evangelicals.
Pacificsm is doctrine fostered by a delusional minority and by the media, which holds forth the proposition it is entirely possible to pick up a turd by the clean end.

Offline FJAG

  • Army.ca Veteran
  • *****
  • 269,575
  • Rate Post
  • Posts: 3,187
  • Ex Gladio Justicia
    • Google Sites Wolf Riedel
Re: Gorsuch, the USSC and the rights of LGBTQ Employment Rights
« Reply #6 on: June 15, 2020, 21:09:10 »
I like this line Gorsuch wrote.

Quote
Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

 :cheers:
Illegitimi non carborundum
Semper debeatis percutis ictu primo
Access my "Allies" and "Mark Winters, CID" book series at:
https://sites.google.com/view/wolfriedel
Facebook at https://www.facebook.com/WolfRiedelAuthor/

Offline MilEME09

  • Army.ca Veteran
  • *****
  • 47,950
  • Rate Post
  • Posts: 2,186
Re: Gorsuch, the USSC and the rights of LGBTQ Employment Rights
« Reply #7 on: June 15, 2020, 21:26:24 »
Makes me like him more that he seems to separate his beliefs from his job, atleast in this instance
"We are called a Battalion, Authorized to be company strength, parade as a platoon, Operating as a section"

Offline Xylric

  • Member
  • ****
  • 7,295
  • Rate Post
  • Posts: 196
Re: Gorsuch, the USSC and the rights of LGBTQ Employment Rights
« Reply #8 on: June 15, 2020, 21:45:55 »
Because Gorsuch was basically pushed by a social conservative movement. He was expected to deliver consistently socially conservative decisions. Stuff like this will significantly undermine Trump's USSC appointments in the eyes of, and may disenchant, a lot of evangelicals.

I disagree, because it seems to me that this was indeed a socially conservative decision, just as much as it is a socially liberal one. From what I've been able to determine, what Gorsuch did was exactly what he said he would do - sticking with the actual text as the paramount consideration, which is an exceedingly impartial approach. I think by the end of his career, he will be as equally liked by both sides as he will be disliked. That just means his role is beyond critical.

Offline Brihard

  • Army.ca Fixture
  • *****
  • 307,080
  • Rate Post
  • Posts: 5,601
  • Non-Electric Pop-Up Target
Re: Gorsuch, the USSC and the rights of LGBTQ Employment Rights
« Reply #9 on: June 15, 2020, 22:06:48 »
I disagree, because it seems to me that this was indeed a socially conservative decision, just as much as it is a socially liberal one. From what I've been able to determine, what Gorsuch did was exactly what he said he would do - sticking with the actual text as the paramount consideration, which is an exceedingly impartial approach. I think by the end of his career, he will be as equally liked by both sides as he will be disliked. That just means his role is beyond critical.

With respect, I'm not sure you're grasping what 'social conservative' means in the context of American judicial appointees.
Pacificsm is doctrine fostered by a delusional minority and by the media, which holds forth the proposition it is entirely possible to pick up a turd by the clean end.

Offline FJAG

  • Army.ca Veteran
  • *****
  • 269,575
  • Rate Post
  • Posts: 3,187
  • Ex Gladio Justicia
    • Google Sites Wolf Riedel
Re: Gorsuch, the USSC and the rights of LGBTQ Employment Rights
« Reply #10 on: June 15, 2020, 22:13:08 »
I disagree, because it seems to me that this was indeed a socially conservative decision, just as much as it is a socially liberal one. From what I've been able to determine, what Gorsuch did was exactly what he said he would do - sticking with the actual text as the paramount consideration, which is an exceedingly impartial approach. I think by the end of his career, he will be as equally liked by both sides as he will be disliked. That just means his role is beyond critical.

True enough as to what Gorsuch did, but you have to remember that the minority in this case is saying that they too are using literal interpretation: it's the text that matters and "sex" doesn't equal "sexual orientation". Alito must have put about a dozen dictionary definitions into his Appendix to establish that.

The way to "literally interpret the actual text" is a very subtle thing. I personally think the majority were right, and not just because I like the decision, but because interpreting "because of sex" is actually a simpler thing than the social conservatives would have us believe.

I don't think that "literal interpretation" is a social conservative thing; it's a facet of statutory interpretation. While social conservatives may like to say they are dealing with "literal interpretation" what they are really doing is trying to freeze the interpretation of laws in the context of a biblically oriented eighteenth or 19th century society. That's essentially what the employers were arguing in this case; that the court should interpret the use of the word "sex" as it would have been understood by the 1964 Congress.

 :cheers:
Illegitimi non carborundum
Semper debeatis percutis ictu primo
Access my "Allies" and "Mark Winters, CID" book series at:
https://sites.google.com/view/wolfriedel
Facebook at https://www.facebook.com/WolfRiedelAuthor/

Offline Xylric

  • Member
  • ****
  • 7,295
  • Rate Post
  • Posts: 196
Re: Gorsuch, the USSC and the rights of LGBTQ Employment Rights
« Reply #11 on: June 15, 2020, 23:08:31 »
True enough as to what Gorsuch did, but you have to remember that the minority in this case is saying that they too are using literal interpretation: it's the text that matters and "sex" doesn't equal "sexual orientation". Alito must have put about a dozen dictionary definitions into his Appendix to establish that.

The way to "literally interpret the actual text" is a very subtle thing. I personally think the majority were right, and not just because I like the decision, but because interpreting "because of sex" is actually a simpler thing than the social conservatives would have us believe.

I don't think that "literal interpretation" is a social conservative thing; it's a facet of statutory interpretation. While social conservatives may like to say they are dealing with "literal interpretation" what they are really doing is trying to freeze the interpretation of laws in the context of a biblically oriented eighteenth or 19th century society. That's essentially what the employers were arguing in this case; that the court should interpret the use of the word "sex" as it would have been understood by the 1964 Congress.

 :cheers:

Most of the American conservatives I know are pleased with this decision, so I suspect those who are upset about it are less 'social conservative' and more 'traditionalist.' But I am not going to change definitions midstream. Absolutely, it's a subtle thing to literally interpret the actual text, I deal with it regularly when translating classical documents (currently working on a few pages of Hippocrates). To translate is to interpret, and to interpret is to translate. The trick is to do exactly as what has been done here - limit oneself to definitions which would have been understood by the original authors *except* where alternate definitions can be identified within the society that existed at the time of the authoring. The more permissive reading of 'sex' in this case would be a clear example - even without it, Transgender individuals should have clearly been protected.

I hate to tell this to those who want to lock interpretations into the context you mention, but the Bible itself warns against doing such things!  :not-again:
« Last Edit: June 15, 2020, 23:17:34 by Xylric »

Offline QV

  • Full Member
  • *****
  • 13,115
  • Rate Post
  • Posts: 460
Re: Gorsuch, the USSC and the rights of LGBTQ Employment Rights
« Reply #12 on: June 16, 2020, 12:39:20 »
It shouldn’t be crazy, he’s already commented.

Trump called the decision "very powerful" and acknowledged it was surprising to some. “They've ruled and we live with the decision," Trump said. "We live with the decision of the Supreme Court."

Appointments like Gorsuch and decisions like this are exactly why people voted for Trump and will again.

"But regardless of who got the better of the lawyering, Bostock shows that those who group all the “conservative” justices together are missing the boat. Gorsuch and Kavanaugh are both committed textualists, and both were appointed not just by a Republican president but by the same one (Trump). Progressive critics who discount their independence or claim they’re just result-oriented reactionaries have egg on their face."  https://www.nationalreview.com/2020/06/supreme-court-decision-bostock-v-clayton-county-we-are-all-textualists-now/

Trump's reaction is as expected.  Never mind the extreme right and extreme left the MSM give far too much air time to, for... reasons.   

Offline Chris Pook

  • Army.ca Subscriber
  • Army.ca Legend
  • *
  • 216,165
  • Rate Post
  • Posts: 12,966
  • Wha daur say Mass in ma lug!
Re: Gorsuch, the USSC and the rights of LGBTQ Employment Rights
« Reply #13 on: June 16, 2020, 14:22:25 »
If I gather Gorsuch's opinion correctly he seems to be saying the following:

A man is a man. 

A woman is a woman.

Society accepts men acting as men.  The actions are acceptable to society.

Society accepts women acting as women.  The actions are acceptable to society

The actions should be no less acceptable to society just because they are done by a man or a woman.

If a woman chooses to act like a man that is her concern.  Her actions are no less acceptable simply because she is a woman.

If a man chooses to act like a woman that is his concern. His actions are no less acceptable simply because he is a man.

To accept the act but no the actor would be to discriminate against the actor solely on the basis of whether they are man or woman - their sex.

And that is illegal.

Meanwhile the intrinsic difference between XX and XY is preserved.

"Wyrd bið ful aræd"

"If change isn’t allowed to be a process, it becomes an event." - Penny Mordaunt 10/10/2019

“Life can only be understood backwards, but it must be lived forwards” ~ Soren Kierkegaard

Offline FJAG

  • Army.ca Veteran
  • *****
  • 269,575
  • Rate Post
  • Posts: 3,187
  • Ex Gladio Justicia
    • Google Sites Wolf Riedel
Re: Gorsuch, the USSC and the rights of LGBTQ Employment Rights
« Reply #14 on: June 16, 2020, 18:14:43 »
According to Alito what Gorsuch did was:

Quote
"The Court's opinion is like a pirate ship," Alito said. "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. "

 ;D
Illegitimi non carborundum
Semper debeatis percutis ictu primo
Access my "Allies" and "Mark Winters, CID" book series at:
https://sites.google.com/view/wolfriedel
Facebook at https://www.facebook.com/WolfRiedelAuthor/

Offline Chris Pook

  • Army.ca Subscriber
  • Army.ca Legend
  • *
  • 216,165
  • Rate Post
  • Posts: 12,966
  • Wha daur say Mass in ma lug!
Re: Gorsuch, the USSC and the rights of LGBTQ Employment Rights
« Reply #15 on: June 16, 2020, 18:32:43 »
Is it of any importance to note that we are still only talking about an "opinion"?
"Wyrd bið ful aræd"

"If change isn’t allowed to be a process, it becomes an event." - Penny Mordaunt 10/10/2019

“Life can only be understood backwards, but it must be lived forwards” ~ Soren Kierkegaard

Offline Brihard

  • Army.ca Fixture
  • *****
  • 307,080
  • Rate Post
  • Posts: 5,601
  • Non-Electric Pop-Up Target
Re: Gorsuch, the USSC and the rights of LGBTQ Employment Rights
« Reply #16 on: June 16, 2020, 18:52:21 »
Is it of any importance to note that we are still only talking about an "opinion"?

Since ‘opinion’ in this context means a judicial decision on a major case in the highest court of the land, which settled a contentious and important law affecting the equal rights of millions... I guess not?
Pacificsm is doctrine fostered by a delusional minority and by the media, which holds forth the proposition it is entirely possible to pick up a turd by the clean end.

Offline FJAG

  • Army.ca Veteran
  • *****
  • 269,575
  • Rate Post
  • Posts: 3,187
  • Ex Gladio Justicia
    • Google Sites Wolf Riedel
Re: Gorsuch, the USSC and the rights of LGBTQ Employment Rights
« Reply #17 on: June 16, 2020, 20:01:26 »
Is it of any importance to note that we are still only talking about an "opinion"?

The ultimate paragraph of the majority's "opinion" makes it both a judicial decision and final order:

Quote
The judgments of the Second and Sixth Circuits in Nos.
17–1623 and 18–107 are affirmed. The judgment of the
Eleventh Circuit in No. 17–1618 is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
It is so ordered.

While the US judiciary uses the phrase "opinion" we in Canada use the term "reasons" or "reasons for decision". In either case it merely means "this is why we have made the decision we have".

 :cheers:
+300
Illegitimi non carborundum
Semper debeatis percutis ictu primo
Access my "Allies" and "Mark Winters, CID" book series at:
https://sites.google.com/view/wolfriedel
Facebook at https://www.facebook.com/WolfRiedelAuthor/

Offline Chris Pook

  • Army.ca Subscriber
  • Army.ca Legend
  • *
  • 216,165
  • Rate Post
  • Posts: 12,966
  • Wha daur say Mass in ma lug!
Re: Gorsuch, the USSC and the rights of LGBTQ Employment Rights
« Reply #18 on: June 16, 2020, 21:22:09 »
I am happy to accept the ref's opinion as the final word.  It was an honest debate before an honest ref. I am not really bothered if there was truth or right involved.  See you at the next match.  Who's buying? 
"Wyrd bið ful aræd"

"If change isn’t allowed to be a process, it becomes an event." - Penny Mordaunt 10/10/2019

“Life can only be understood backwards, but it must be lived forwards” ~ Soren Kierkegaard

Offline Colin P

  • Army.ca Legend
  • *****
  • 166,345
  • Rate Post
  • Posts: 10,281
  • Civilian
    • http://www.pacific.ccg-gcc.gc.ca
Re: Gorsuch, the USSC and the rights of LGBTQ Employment Rights
« Reply #19 on: June 16, 2020, 21:30:44 »
While the findings will annoy traditionalists and social conservatives, they at least know and can understand why he did what he did. So they can bet on roughly 50% of the cases going the way they would like. With a more left wing "activist" judge, likley they would get 15-20% of the cases going their way.

Offline FJAG

  • Army.ca Veteran
  • *****
  • 269,575
  • Rate Post
  • Posts: 3,187
  • Ex Gladio Justicia
    • Google Sites Wolf Riedel
Re: Gorsuch, the USSC and the rights of LGBTQ Employment Rights
« Reply #20 on: June 18, 2020, 23:41:58 »
Aaaand! It took this long.

Quote
Trump calls for ‘new justices’ on Supreme Court, as conservatives rage at Roberts
Adam ShawBy Adam Shaw | Fox News

President Trump, in the wake of Thursday's defeat at the Supreme Court in his efforts to repeal the Obama-era Deferred Action for Childhood Arrivals (DACA) program, called for new justices as conservatives took aim at Chief Justice John Roberts for what they called a “pattern” of siding with the liberal wing in key decisions.

“The recent Supreme Court decisions, not only on DACA, Sanctuary Cities, Census, and others, tell you only one thing, we need NEW JUSTICES of the Supreme Court. If the Radical Left Democrats assume power, your Second Amendment, Right to Life, Secure Borders, and ... Religious Liberty, among many other things, are OVER and GONE!”  he tweeted.

He went on to promise that he will release a “new list of Conservative Supreme Court Justice nominees, which may include some, or many of those already on the list, by September 1, 2020.”

Trump’s call comes after the court ruled Thursday, in a 5-4 decision penned by Roberts, that his reversal of former President Barack Obama’s executive order –­ that shielded immigrants who came to the country illegally as children from deportation –­ was in violation of the Administrative Procedure Act (APA), which sets out rulemaking procedures for federal agencies.

...

See rest of article here

 :pop:
Illegitimi non carborundum
Semper debeatis percutis ictu primo
Access my "Allies" and "Mark Winters, CID" book series at:
https://sites.google.com/view/wolfriedel
Facebook at https://www.facebook.com/WolfRiedelAuthor/

Offline Xylric

  • Member
  • ****
  • 7,295
  • Rate Post
  • Posts: 196
Re: Gorsuch, the USSC and the rights of LGBTQ Employment Rights
« Reply #21 on: June 19, 2020, 00:00:22 »
Aaaand! It took this long.

See rest of article here

 :pop:

One thing I have wondered about, since I am still young in the ways of US politics, is if there is anything abnormal about this. Hasn't every president essentially have the Supreme Court slap them across the face like this in some way? I mean, that is one of its core functions, isn't it?

Offline Colin P

  • Army.ca Legend
  • *****
  • 166,345
  • Rate Post
  • Posts: 10,281
  • Civilian
    • http://www.pacific.ccg-gcc.gc.ca
Re: Gorsuch, the USSC and the rights of LGBTQ Employment Rights
« Reply #22 on: June 19, 2020, 00:24:25 »
That's my understanding and it annoys him that he cannot influence it or stack the deck as much as he would like. the main difference between Trump and the Dems, is that he will have a tantrum when things don't go his way and do it publicly. The Dems are more insidious, more or less boiling the frog and forcing cultural changes with the same determination, but more hidden. With Trump you know what you are getting, whether you like him, dislike or tolerate him due to a lack of better choice.

Offline Blackadder1916

  • Army.ca Veteran
  • *****
  • 234,575
  • Rate Post
  • Posts: 3,322
Re: Gorsuch, the USSC and the rights of LGBTQ Employment Rights
« Reply #23 on: June 29, 2020, 21:44:10 »
And in other Supreme Court news.

What the Supreme Court’s Abortion Decision Means
Trump promised to appoint justices who would “automatically” overturn Roe v. Wade. The chief justice just made sure that won’t happen before the 2020 election.
https://www.theatlantic.com/politics/archive/2020/06/supreme-court-abortion-trump/613642/
Quote
EMMA GREEN    JUNE 29, 2020   12:33 PM ET

Chief Justice John Roberts balked.

This morning, the Supreme Court announced its decision in June Medical Services v. Russo, the first big test of whether, and how, this Court—with two Donald Trump appointees—would revise abortion rights in the United States. When Trump was running for president, he explicitly promised to appoint judges who would “automatically” overturn Roe v. Wade, the case that established the constitutionality of abortion. Today, the Court has repudiated Trump’s promise with its decision in June Medical. While the ruling does not signal that abortion is safe at the Supreme Court, it’s a message that anti-abortion advocates cannot simply expect the Court to reverse abortion rights just because conservative justices now dominate the bench.

In 2018, when Justice Anthony Kennedy, who formerly acted as the Court’s main swing voter on social issues, announced his retirement, commentators were quick to pronounce abortion rights dead: “Abortion will be illegal in twenty states in 18 months,” tweeted the New Yorker writer Jeffrey Toobin. And yet, today, the liberal wing of the Court won.

June Medical concerns a Louisiana law that required doctors who perform abortions to obtain admitting privileges at nearby hospitals, which in theory meant they could immediately address emergency medical situations that arise during the procedure, but in practice served to limit the number of medical professionals who can legally terminate pregnancies. In the judgment of the Court, this case is nearly identical to one it decided just four years ago, Whole Woman’s Health v. Hellerstedt, about a strikingly similar law in Texas. When faced with the prospect of overturning such a fresh precedent—even though he disagreed with the outcome of that case—Roberts was unwilling to potentially undermine the legitimacy of the Court.

The Louisiana law that was at stake in June Medical embodies the anti-abortion movement’s strategy over the past decade. For at least the past 10 years, activists have pushed state-level regulations on abortion clinics. These restrictions are ostensibly designed to protect the health and safety of women. “The vast majority of Americans support patient-protection laws because they recognize that abortion practitioners should meet the same standard of care as any other physician,” Catherine Glenn Foster, the president and CEO of Americans United for Life, one of the national groups leading this effort, told me. When the Court considered a Texas law along these lines in Whole Woman’s Health v. Hellerstedt, however, it found that it placed an undue burden on women seeking abortions. June Medical Services effectively asked the new conservative majority on the Court to overturn precedent, effectively giving a green light to anti-abortion activists who have worked to restrict abortion at the state level.

The composition of the Court appeared favorable to the challenge. Roberts voted with the minority in Whole Woman’s Health. And the new justices on the Court, Brett Kavanaugh and Neil Gorsuch, are both conservatives who have written passionately about the importance of religion in America and have expressed skepticism of the Court’s record on abortion rights. Despite these shared views on abortion jurisprudence, Roberts has recently been concerned about the Court’s partisan appearance. “I’ve always thought this [case] was a particularly difficult ask for Roberts, who has been very public about his concern for the Court’s reputation and institutional legitimacy,” Mary Ziegler, a law professor at Florida State University and the author of Abortion and the Law in America: Roe v. Wade to the Present, told me. In 2018, Roberts went so far as to rebuke the president’s claim that judges can be relied on to vote a certain way simply because of who appointed them: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he told the Associated Press. Cases concerning abortion are arguably the ultimate test of this principle. “It is a challenge for him, in this case, as many people would react to a Louisiana victory by accusing the the Court of being an appendage of a political party,” Cary Franklin, a law professor at the University of Texas, told me.

In an opinion concurring with the majority decision, which was written by the liberal-leaning Justice Stephen Breyer, Roberts was explicit that he is not defending abortion rights. He is defending the Court. “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided,” he wrote. “The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.” The legal doctrine of stare decisis, which means “to stand by things decided,” requires courts to treat similar cases alike, he wrote. Otherwise, it’s difficult for Americans to know what the law actually says. While Louisiana had argued that the facts of this case were substantively different from those in Texas, Roberts didn’t buy it. His unwillingness to go along with the argument that abortion regulations in each state should be treated differently is a clear signal to anti-abortion activists that they may have to shift their legal strategy. “It may be popping the balloon of the anti-abortion movement,” Ziegler said.

And yet, this decision does not mean that abortion rights will be automatically protected by the Supreme Court in future cases. Roberts was clear that he is still critical of the way Whole Woman’s Health was decided, and there are countless abortion-related challenges, focused on entirely different issues, currently winding their way through the federal court system. And the Court will likely continue to hear cases about incremental restrictions on abortion rights.

Although Trump’s appointments have shifted the Court in many significant ways, this case is a sign that the institution cannot be rapidly transformed to meet the political needs of the current administration. For groups that have worked closely with the president to change the makeup of the Supreme Court and limit abortion rights, the decision in June Medical is a major strategic loss. “Today’s ruling is a bitter disappointment,” said Marjorie Dannenfelser, the president of the Susan B. Anthony List, an influential anti-abortion-rights advocacy organization, in a statement. “It demonstrates once again the failure of the Supreme Court to allow the American people to protect the well-being of women from the tentacles of a brutal and profit-seeking abortion industry.” For activists and scholars who support abortion rights, however, this is a victory—not just because the Court decided in their favor, but because it shows that even controversial issues such as abortion will not be wholly decided by political imperatives. “We should celebrate because it’s also a sign that there’s something going on,” Aziza Ahmed, a law professor at Northeastern University, told me. “We can’t just assume that because we have a conservative majority, the right will always win.”
Whisky for the gentlemen that like it. And for the gentlemen that don't like it - Whisky.

Offline Colin P

  • Army.ca Legend
  • *****
  • 166,345
  • Rate Post
  • Posts: 10,281
  • Civilian
    • http://www.pacific.ccg-gcc.gc.ca
Re: Gorsuch, the USSC and the rights of LGBTQ Employment Rights
« Reply #24 on: June 30, 2020, 02:26:13 »
Short form: "courts working as intended, despite dire predictions"