A Break in the Storm Clouds

Let’s not beat around the bush. 2020 has been a shit show, so far. A global pandemic, a cratering economy and racial protests in the streets. All we need is a zombie apocalypse to complete the cycle. These days, good news has been about as hard to come by as Trump telling the truth.

So it was a pleasant surprise that the first tangible good news of the year came courtesy of the Supreme Court. In the landmark case Bostock v. Clayton Countythe Court ruled 6-3 that Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex, also applies to sexual orientation and gender identity.

The majority opinion was written by Justice Neil Gorsuch and was joined by Chief Justice John Roberts and the four liberal justices on the Court. That in itself is an irony, given that Gorsuch was appointed by Trump to replace former Justice Antonin Scalia, who had written the dissenting opinion in the Obergefell decision five years earlier. If you remember that, too, was a landmark case that legalized gay marriage. Justice Anthony Kennedy, who wrote the majority decision, cited the Due Process and Equal Protection Clauses of the Fourteenth Amendment for his rationale.

It was a historic moment for the LBGTQ community. While not every gay and trans couple gets married, all, with the exception of those who are independently wealthy, have to work for a living. Now they can do so without fear of being terminated or retaliated against. But while many are heralding the ruling, they would do well to note that Gorsuch, like Scalia before him, is a textualist. As such, he relied on the plain text of the law to guide his decision. I seriously doubt that he is a proponent of gay rights, anymore than Scalia was. Regardless of the motives, though, it was a great day.

But the Supreme Court wasn’t done there. It rejected a request by the Trump Administration to hear an appeal of a decision by the 9th Circuit Court that affirmed a lower court’s stay of its policy of denying asylum to people illegally crossing the U.S. – Mexican border, because, in its opinion, it violated federal law.

If you’ll recall, it was on November 9th of last year that Trump went after the District Judge of that court, Jon Tigar, an Obama appointee, for his decision. That prompted the now infamous, stinging rebuke by Roberts:

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

So you can appreciate the significance of Roberts joining the four liberals on the Court to deny the administration even a chance at appealing that decision. I can almost smell the smoke emanating from Trump’s head. Don’t be shocked if Roberts is the deciding vote in Trump v. Vance, the criminal case that the Court heard oral arguments on last month involving a Manhattan grand jury’s subpoena of Trump’s personal and business tax returns. Bunker Boy will blow his top if he loses that one.

Unfortunately, all was not good news, for the Supreme Court also refused to reexamine the doctrine of qualified immunity, which in theory is supposed to protect police from frivolous lawsuits, but in practice ends up being an absolute shield for law enforcement, thus depriving victims of police misconduct a chance at compensatory damages. Until this law is amended or repealed altogether, cops who kill innocent people like George Floyd will continue to literally get way with murder, at least monetarily.

So, to sum up, two in the win column, one in the loss column. Given what we’re going through these days, I’ll take that in a heartbeat.

Author: Peter Fegan

Progressive but pragmatic. Lover of music, die-hard Giants' fan and reluctant Mets' fan. My favorite motto? I'd rather be ruled by a smart Turk than a dumb Christian.

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