Tuesday, October 8, 2019

Supreme Court: Tuesday's arguments and the process that will follow

Conservative Justice Neil Gorsuch could be the deciding vote in three cases heard by the Supreme Court Tuesday. Two of the cases involve individuals who were fired from their jobs when it became known that they are gay. A third case involves a transgender woman who was fired when she transitioned.
In today's oral arguments at the Supreme Court, Justice Gorsuch indicated that a literal ruling of the text of Title VII could include sexual orientation and gender identity. Textual literalism might overrule original intent. On the other hand, Gorsuch also questioned whether this matter, because of its impact, should be addressed by Congress. Could he be the swing vote in these cases?

Only Neil Gorsuch can answer that question. Observers believe that the four more liberal justice are inclined to vote in favor of protecting LGBTQ people from workplace discrimination.

There is a process to be followed first.

The justices are likely to determine, at least initially, what they are going to do at Wednesday's routine conference. Prior to conference they will discuss the case with their law clerks. At conference (which only the justices attend) each justice (in order of seniority) discusses the case. Then they vote in order of seniority. (The chief justice is the most senior regardless of his length of service.) By the time Gorsuch gets to speak he will have heard seven other opinions, each with the intent of influencing the other justices. Justices speak without interruption.

Upon conclusion of the discussion, the justices vote on the case, again in order of seniority beginning with the chief justice. The most senior justice in accord decides who will write the opinion for the majority. Similarly, the most senior justice in dissent can assign a justice in dissent to write the dissenting opinion.

Eventually the justices vote again because a majority are required to approve the draft of the Court's opinion. As a result of reviewing the drafts, a justice might change their vote making the dissenting opinion the majority opinion. No one knows how often this happens. The public only knows the final tally when the opinion is delivered.

In other words the only thing that we know to a reasonable certainty is that we will know the outcome of these cases by the end of the current term, in late June.

Two of the cases argued today involve gay people who were terminated from their jobs solely because they are gay. The third case involves a transgender woman who was fired when she transitioned. Fairness dictates a decision in favor of the LGBTQ people. Keep in mind that this is not a constitutional question. The cases are about how Title VII of the Civil Rights Act of 1964 should be interpreted.

I expect that we are going to lose these cases. I am profoundly frustrated by the fact that Merrick Brian Garland would have made a difference. In some ways this case is being decided by Mitch McConnell who has managed to pack the federal courts with ideologues. If we have a different outcome I will be pleasantly surprised. Gleeful would be an understatement.

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