Two Bad Supreme Court Decisions – From a Process Point of View

It’s been a bad week for people who see the job of the Supreme Court as applying the law, as opposed to coming up with ways to do what Congress should do but hasn’t.

First, it was the LGBT workers decision on Monday in Bostock v. Clayton County.  I think that people shouldn’t be fired from jobs for being gay, lesbian, etc.¹  And I think Congress should pass a law to that effect (as should states).  But Congress hasn’t.  I do not believe that Title VII of the 1964 Civil Rights Act, when it prohibits discrimination in employment because of an individual’s sex, covers discrimination because of sexual preference, gender identity, etc.  “Sex” did not include those things in 1964, and it shouldn’t be interpreted as including them today.  There is a proper way to do it: Pass a law.

A very long time ago, I wrote an article on why I opposed the Equal Rights Amendment.²  My reasoning was simple (and I believe it is still correct): I didn’t want the courts deciding what the law was on equal rights and sex.  There seemed to me to be some difficult questions on how equal rights should apply, and I thought Congress was better placed to make those decisions than courts.

That is one of the problems with the Bostock decision.  Justice Gorsuch says that Bostock only covers discrimination because of sex in employment:

“We do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex.’”

But Justice Anthony Kennedy said his decision in Lawrence v. Texas (2003), which held a Texas law prohibiting same-sex sexual activity was unconstitutional, did not mean laws against same-sex marriage were unconstitutional.  Twelve years later, in Obergefell v. Hodges, that is what the Court ruled, in another decision by Justice Kennedy.  There are more than a hundred federal laws against sex discrimination.  Bostock effectively means the courts will be deciding what sex discrimination means in those laws and those situations, instead of the political branches. 

Second was the decision Thursday in the Deferred Action for Childhood Arrivals (“DACA”) case, DHS v. University of California.  “Dreamers”³ should be protected.  It is appalling that Congress and the President have not approved legislation to do so.  But that failure has been going on for over a decade.⁴  The Obama administration set up its DACA program by, in effect, executive order in June of 2012.  President Obama expanded it in November of 2014, after the election.⁵  The Obama administration didn’t follow the Administrative Procedure Act (“APA”) and issue regulations; the Administration just declared a policy.  Now, the Supreme Court has held the Trump administration can’t get rid of a policy set up by executive order without a good reason and by following the APA.  Which would seem to be mean, as Justice Clarence Thomas said in his dissent, that an outgoing president can set up a policy by executive order and his or her successor can’t get rid of it except by “provid[ing] sufficient policy justifications to the satisfaction of this Court.”

The Chicago Tribune said that President Obama’s DACA program “pushed presidential authority to the limit, if not beyond.  But Barack Obama created it only after Congress repeatedly failed to act on immigration reform.”⁶  The Tribune continued:

“The unwillingness of our elected leaders to agree on legislation is a disgrace.

The need remains urgent.  The court made it clear that DHS could have dismantled DACA legally …”

All of which is true, but the Tribune misses the point, which The Wall Street Journal reports, that the Supreme Court’s decision takes away any urgency for Congress to act.  The Dreamers are safe (for now).  It will take a while for the Trump administration to follow the APA, assuming President Trump even gets reelected. so why should Congress try to come up with a compromise when it’s easier to posture?

In other words, once again, we have policy, even if it is right, effectively being made by the Supreme Court instead of the political branches, where policy is supposed to be made.  Some may think this is okay because the Supreme Court got the answer right.  I don’t.  I think it turns the courts into lawmakers, in place of Congress and state legislatures.  It’s not proper process.  It takes decisions away from the people and their elected representatives.

But Congress isn’t doing anything, people say.  They aren’t making decisions.  They haven’t passed laws to protect LGBT people from discrimination at work.  They’ve done nothing to protect the Dreamers.  Somebody has to do something.  The Supreme Court is the only one left.

But that is not the way the system is supposed to work.  Following proper process, following rule of law, is critical to protecting the system.  It is not the Supreme Court’s job is not to do what the other branches are supposed to do but aren’t – or won’t.  Sometimes doing nothing is what the people, or at least enough of the people, want.  Sometimes, the people don’t know what they want, so there is nothing to do yet.  And sometimes, we just have to wait.

Also, if the courts get in the business of making political decisions and people start to see them as making the law as opposed to applying it, the courts may wind up as disrespected as Congress and state legislatures.⁷  The worry is that this disrespect will then carry over into areas where courts are properly acting, such as criminal trials and civil lawsuits.  That would be a great danger to our system.  Because if courts aren’t trusted when they are doing that, then our system is really in trouble.

One final point.  In his dissent in Bostock, Justice Kavanaugh made what The Wall Street Journal called “an unusual aside” when he suggested sympathy with the result of the case even though he didn’t agree with the court’s decision.  I don’t find that surprising at all, though it might be unusual that Justice Kavanaugh actually said it.  The role of a judge is not to reach a decision he or she sympathizes with.  The role of a judge is to reach the decision required by the law.  I would expect that a judge might, at times, disagree, policy-wise, with the decision the law requires him or her to make.  In fact, I would suggest that a judge, or Justice, who always sympathizes with the decision he or she makes is not applying the law but his or her own policy preferences.  Which is wrong – and not proper process.
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¹ I think it is obvious there should be exceptions to such a rule, such as for ministers and certain other employees of churches, etc., but some may disagree with me on that, especially with respect to how broad such an exception should be.
² The article was published by Human Events in September of 1977. 
³ “Dreamers” is the name for people, now adults, who were brought to the U.S. illegally as children.
⁴ Legislation protecting Dreamers could have been passed in 2009-10, but the Democrats didn’t do it.
⁵ Interesting timing.
⁶ The failure of Congress to act does not mean the President has the authority to do so, but that is a separate process point. 
⁷ Maybe some state legislatures are respected; Illinois’s isn’t.  But then virtually no governmental body is respected in Illinois.  Pretty much for good reason.