Terry H. Schwadron
June 20, 2020
Amid hoopla last week over two Supreme Court decisions that upended Donald Trump policies about LGBTQ employment protections and barring an administration end for DACA, there was this: The decisions were narrow, and subject to re-examination in future cases.
The truth is that if we had a functioning Congress, neither matter should have gone to the courts. Indeed, from analyses of the decisions, the Court was guided by Chief Justice John G. Roberts’ predilection for narrowness.
The dissents from the conservative bloc on the Court tell the story: Were Congress to have been specific about expanding (or not) workplace protections based on sexual orientation, that case would have come up for review altogether.
And, in the case allowing Deferred Action for Childhood Arrivals case involving children of immigrants, the decision stuck perilously on the reasoning — or lack of it, as the Court found — rather than on the substance of the question itself. The conservative dissent , a familiar one, argued that the Court was acting as a legislature.
In other words, a Congress could have, should have, might still weigh in on these questions. Regardless of your political persuasion, the next election matters yet again — this time to settle cases that the Court is slicing so thinly as to make hash of anything like actual values or constitutionality.
The fact is that America — or its gerrymandered districts, its reliance on political money and its unpleasant personality-based contests — insists on electing Congresses so split as to make them unable to act.
Let’s hope that this November, the results can actually be sufficiently robust as to indicate a direction for the country.
Law and Spirit of Law
To me, the spirit of the law and of our times seems clearly on the side of expanding civil rights. But, our course, that’s why they don’t name me a Supreme Court justice.
For all the dithering about the wording of laws and the need for “textualism” expressed by the current round of conservative-leaning judges, the facts support the idea that a majority on the Court uses the language at hand to justify a discernible lean on many cases. By contrast, what has come to describe the more liberal-leaning judges is a desire to look more at the spirit of the law, to acknowledge that we are dealing with interpretations that clearly were not possible 200 years ago or even 50 years ago, in some instances. Isn’t that what people who read from Scriptures/Torah/Koran seek to do? Check the Word, and then apply to current-day thinking?
That’s why journalists and lawyers listen hard to the questions asked by the justices in hearing the cases altogether in attempts at gauging what actually is drawing the interests of the justices. The push and pull we see on the Court is over finding legal relevance that accounts for an actual living society.
Lots of cases come before the Court that do not require partisanship, but we tend to focus most as a nation on those issues that most reflect our deepest divisions on important social issues, from abortion to immigration to civil rights to issues perceived as supporting Trump policies or not.
For those cases, Chief Justice Roberts consistently has tried to guide as narrow a decision as possible, preferring, as this week, to focus on administrative procedure rather than broad sweeps of the statutes governing equality. The DACA decision is practically an invitation to the Trump administration to take another try at eliminating the immigration program — this time taking more care about laying out reasoning along the way to avoid any charge of capriciousness.
Justice Neil Gorsuch managed to anger Trump in finding the obvious — that “sexual orientation” requires a logical examination of the word “sex,” which is specifically listed in the list of protected workplace statuses.
What About a Changing America?
For Trump, who sees only win and lose in every situation, anything not decided to the satisfaction of his gut is an attack, and we saw him lowering his tweet guns on his own judicial appointees.
What is left out of this equation is that America itself undergoes changes. The streets are filled at this moment over questions of racial equality and appropriate policing, over reparations for slavery and systematic discrimination. What is our expectation for the Courts? To hear Justices Samuel Alito and Clarence Thomas tell it in their dissents, actual American strife is of no concern to the Court — only the literal terms of the 200-year-old Constitution.
Of course, they say this while meeting on Zoom, using technology unforeseen even 50 years ago, while watching the reactions to police killings and aggressions against Black citizens rise, while seeing the immigration debate tear families apart, while watching anguish over what it is like to be transgender in our society. Why wouldn’t actual experience figure into decision-making?
Here’s the challenge for you and me: Rather than react in joy or fury over a single Supreme Court decision, ask yourself whether this ruling will stick, whether it has cut the baloney so thinly as to all but demand that a gridlocked Congress revisit the underlying issues.
And then redouble your efforts to make sure you and everyone else you can reach actually votes.