A milquetoast Supreme Court?

Earlier this year, I wrote about how the Supreme Court was ducking important issues about the rights of gay and transgender individuals. The questions it has been avoiding are (1) whether Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sexual preference and (2) whether it prohibits discrimination based on transgender status.

Together, these two questions affect the rights of millions, if not tens of millions, of Americans. And it’s not as if, by avoiding them, the Supreme Court strikes a blow against judicial activism. Lower courts are deciding these issues. The circuit courts of appeal are divided on both questions.

The Supreme Court has before it cases through which it can answer definitively both questions. Yet, when I wrote about this matter in January, the Court had repeatedly “relisted” these cases. When a case is “relisted,” it’s set for reconsideration at the Justices’ next Conference. When a case is repeatedly relisted, the Court is kicking the can down the road.

Since I wrote my January post, the Court has relisted the cases in question a few more times. It seems determined to keep ducking the issues they present.

What cases has the Court been deciding? Few that are important enough for you likely to have heard about unless you’re a law professor or an appellate court/Supreme Court practitioner.

Yesterday, the Court decided that Federal Rule of Civil Procedure 23(f) is not subject to equitable tolling. Good to know, but hardly momentous.

Today, the Court decided that farmers and fisherman from India may be able to sue the International Finance Corporation (IFC) in a federal court because the IFC is not absolutely immune from suit. This outcome may be cause for celebration in India, but it’s inconsequential for Americans.

In two cases of greater importance, the Court today veered leftward in the area of criminal law. In a 6-3 decision, it refined standards regarding ineffective assistance of counsel claims and criminals who sign waivers of appeals. The Court determined that a “presumption of prejudice” applies if the lawyer was “ineffective” even when a criminal signs an appeal waiver.

Justice Sotomayor’s opinion was joined by the three other liberals, plus Chief Justice Roberts and Justice Kavanaugh.

In addition, the Court ruled 5-3 that the Eighth Amendment may prohibit executing a prisoner who suffers from dementia (the prisoner in question has been death row for 30 years) but is not insane or delusional. The Chief Justice voted with the liberals. Kavanaugh did not participate because the case was argued before he joined the Court.

Are we stuck with a milquetoast Supreme Court? Maybe. It ducks hugely important issues as to which conservatives may have a majority, doesn’t seem hesitant to decide ones where the liberals have five or more votes, and appears partial to deciding cases where ideology plays no part.

To be fair, come June we’ll see some big decisions. But for those who follow the Court closely, this Term might end up being as noteworthy for the issues the Court refused to decide as for the ones it decided.

This is not what Trump voters expected when they voted for a candidate who made the Supreme Court one of his main issues in 2016.

What went wrong? Two things, I believe, one of which Trump couldn’t do anything about.

First, Chief Justice Roberts wants to avoid controversy, so as to “protect” the Supreme Court. God forbid that the “conservative” majority issue too many conservative decisions. The media might start to question the legitimacy of the Supreme Court.

Second, Justice Kavanaugh wants to avoid controversy. The rumor mill has it that he plans to “lay low” during his first year due to all the controversy that surrounded his confirmation. I can’t vouch for the truth of this rumor, but his behavior to date is consistent with it.

Kavanaugh can wait ten years. He’ll always be a lightning rod for the left and its media allies unless he turns out to be another Justice Kennedy (or maybe becoming another Justice Souter is required).

Chief Justice Roberts strikes me as the more principled of the two reluctant Justices. At least he’s protecting the interest (as he sees it) of an institution. Kavanaugh seems to be protecting only his own interest.

Do you think any Justices appointed by Democratic presidents would be behaving as Roberts and Kavanaugh are if there were five of them on the Supreme Court? I don’t either.

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