In this post from last week, I described how the Supreme Court has avoided hearing cases relating to key LGBT issues that ought to be decided one way or the other. Most notably, it has ducked the issue of whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of. . .sex,” within the meaning of Title VII of the Civil Rights Act of 1964. Lower courts have divided on this question, making it ripe for resolution by the Supreme Court.
But that Court has repeatedly “relisted” two cases that raise the issue. In other words, it has deferred deciding whether to hear them.
Today, the Supreme Court issued an order covering a long list of cases. It granted certiorari in one case and denied cert in several dozen others.
As to the three bit LGBT cases, the Court again did nothing.
Yet, the order is consequential for these cases. It means that, barring unforeseen circumstances, they will not be heard this term. That, at least, is my understanding.
The indications are that the LGBT cases are being kicked down the road because Chief Justice Roberts and Justice Kavanaugh won’t join their conservative brethren in voting to hear them. Kavanaugh’s unwillingness to do so is consistent with rumors that the new Justice has decided to “lay low” for a year, following his bruising and divisive confirmation hearing.
It’s not clear, however, what laying low for a year gets Kavanaugh, other than a chance to hire another round of female law clerks. It’s not as if his enemies are going to absolve him of his alleged misdeeds after one year. There’s no statute of limitations for MeToo movement offenses (real or imagined) by rich, white Catholic boys. Indeed, the left is still waging its battle against Justice Thomas over Anita Hill’s 1991 allegations. And Thomas wasn’t even rich or white (or Catholic by the time of his appointment to the Court).
Deciding highly controversial LGBT cases in 2020 rather than 2019 could have consequences. It might galvanize anti-Trump sentiment in an election year to the detriment of President Trump. Thus, Kavanaugh may be advancing his rumored interest in “laying low” for a year at the expense of the president who appointed him. In any event, he’s doing so at the expense of timely resolving issues the Court should be deciding.
It’s possible that the Court will duck the LGBT cases beyond 2020. “Laying low” can become habit forming.
I should note that the Court today did grant the Trump administration’s request to lift injunctions issued against its policy of barring certain transgender people from joining or staying in the military. The military will be able to maintain its practice while legal challenges to the policy continue in the lower courts.
The vote was 5-4. Justice Kavanaugh voted with the Chief Justice and Justices Thomas, Alito, and Gorsuch to lift the injunctions.
Is this vote inconsistent with the rumors that Kavanaugh wants to lay low? Not really. I’ve heard no rumors that Kavanaugh plans to “rehabilitate” himself by voting with the four liberal Justices on anything like a regular basis.
Rather, his strategy, if the rumors are true, is to avoid for the most part having to decide certain kinds of highly controversial cases. When there is no escape hatch, as in the transgenders in the military case, I think we can depend on Kavanaugh to vote, in the main, with the conservatives. When there is a way out, we may see Kavanaugh continue to take it — at least during this term.