Don’t Worry About Roe, Conservative Prof Misleadingly Argues

“Let yourself go,/ Relax,/ And let yourself go.

Relax,/ You’ve got yourself tied up in a knot.”

 

I had originally reacted with incredulity about a recent effort to paint Amy Coney Barrett’s nomination to the Supreme Court as largely irrelevant to the fate of Roe v. Wade and constitutional protection for reproductive rights. I drafted a blog entry with the title and epigram above. But I secured publication of my commentary in law.com’s The Recorder here. So, with permission of The Recorder, I present that commentary below.

 

 

Reprinted with permission from the Oct. 8, 2020 issue of The Recorder. © 2020 ALM Media Properties, LLC. Further duplication without permission is prohibited.

 

Law Professor’s Argument Is No Reason Not to Worry About ‘Roe’

 

David Cruz, law professor at the University of Southern California Gould School of Law, says a recent op-ed from Stanford’s Michael McConnell is misleading about the security of Roe v. Wade and abortion rights in the nation’s high court with the addition of Judge Amy Coney Barrett.

 

By David Cruz | October 08, 2020 at 08:00 AM

 

Conservative law professor Michael McConnell has published an op-ed in the Washington Post essentially telling the nation to take a chill pill about the confirmation of President Donald Trump’s nominee to the Supreme Court of the United States. Replacing liberal Supreme Court Justice Ruth Bader Ginsburg with conservative Judge Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit “would not end abortion rights,” he says. Unfortunately, his argument rests on errors a constitutional law professor at Stanford should not make and is misleading about the security of Roe v. Wade and abortion rights in the Supreme Court after Barrett fills Ginsburg’s seat.

 

In the op-ed, McConnell tries to reassure the large portion of the American public who approve of women’s constitutional reproductive rights that Roe has not in the past been overruled despite numerous Supreme Court appointments by conservative presidents starting with Ronald Reagan. And according to McConnell, it “will not be lightly overruled” by the court even with Barrett installed. As supporting evidence, he argues: “Roe was reaffirmed this summer, in effect, by June Medical, with a majority opinion written by Chief Justice John G. Roberts Jr., an appointee of President George W. Bush.”

 

Almost everything about this sentence other than John Roberts’ position as chief justice and the president who approved him is wrong or at least misleading.

 

Start with Roberts’ opinion in June Medical Services v. Russo. In this case from June 2020, the Supreme Court by a 5-4 vote held restrictive Louisiana abortion regulations were unconstitutional. This shows us that Roe is safe, McConnell in effect says, because Roberts wrote the “majority opinion” in June Medical, showing that even judicial conservatives aren’t chomping at the bit to overrule Roe.

 

This argument that abortion rights will continue to be upheld doesn’t survive elementary math. It takes five votes from the nine justices to form a majority. With Ginsburg on the Supreme Court there were four more liberal Justices, who if they picked up just one vote could achieve more liberal results. With Barrett replacing Ginsburg, that leaves three liberals, who would need two of the more conservative justices to agree on any outcome, such as adhering to Roe and subsequent decisions protecting abortion rights. The fact that the four liberals were joined by Roberts in striking down the law challenged in June Medical does not mean that any of the other conservative Justices would do so—especially since the four on the court were unwilling to do so this summer.

 

In addition, McConnell grossly oversells Roberts’ position in June Medical. He is flatly incorrect in stating that Roberts wrote the “majority opinion” in the case. As the link in his op-ed to the official Supreme Court opinion makes abundantly clear, Roberts’ opinion in the case was not a “majority” opinion. A majority of nine is five or more, but Roberts’ opinion concurred in the judgment in the case (the outcome, but not the opinion). It was a solo concurrence, expressing only the views of the chief justice. The lead opinion in June Medical was a plurality opinion written by Justice Stephen Breyer for himself and the three other more liberal justices of the court. There simply was no majority opinion in the case, which matters because the court has often treated the lack of a majority opinion as a reason a precedent is more susceptible to overruling.

 

Some have argued that the holding of June Medical is contained in Roberts’ solo concurring opinion that espouses a much less protective version of doctrine than that applied in the Supreme Court’s Whole Woman’s Health v. Hellerstedt decision on which the more liberal Justices relied. In a case where there is no majority opinion, the Supreme Court has said that the holding should be identified pursuant to Marks v. United States, 430 U.S. 188 (1977), which asks which of the concurring justices offers the narrowest reasoning.

 

The right way to operationalize the Marks rule has divided scholars and courts alike. And, as professor David Cohen of Drexel University has noted, lower courts are already disagreeing about whether Roberts’ view in June Medical constitutes the holding under Marks. Cohen has cogently argued that even accepting Marks, prior Supreme Court precedent applied by the June Medicalplurality, offering more protection to reproductive rights than Roberts’ concurrence, remains the governing law. If that is true, the loss of Ginsburg from the June Medical majority and her replacement with Barrett could well be enough to tip the balance in a way that matters greatly.

 

Even without overruling Roe, Whole Woman’s Health, or other precedents protecting abortion rights, however, the Supreme Court could effectively gut them. First, rights can be undermined by narrowing interpretations, increasingly limiting the circumstances under which the rights apply, rather than by outright overruling of precedents. Indeed, Supreme Court justices dissenting from conservative majorities that have upheld abortion restrictions ostensibly under Roe or that case’s “central holding” have decried just such sapping and undermining.

 

This is a technique quite familiar to Roberts, observable for example in his treatment of precedent formally upholding the preclearance requirement of the federal Voting Rights Act of 1965 but gutting it by striking down that important law’s provision subjecting specific states to the requirement to obtain judicial or Justice Department approval to change their voting laws in his 2013 opinion for the conservative majority (Shelby County v. Holder, 570 U.S. 529 (2013)).

 

Second, McConnell’s op-ed does not address Roberts’ very narrow basis for voting in June Medical to hold the challenged Louisiana abortion regulations unconstitutional. In my view, with that omission it is highly misleading of McConnell to suggest that Roberts “reaffirmed” Roe. Roberts’ solo concurrence expressly explained that he voted as he did only as a matter of stare decisis, respect for the court’s precedent.

 

That is very different from voting because you are committed to upholding a precedent. Indeed, Roberts candidly stated in June Medical that he was voting to adhere to Whole Woman’s Health’s protection of abortion rights “in deciding the present case”—not in deciding future abortion rights disputes—because “neither party has asked us to re-assess the constitutional validity” of the prior precedent’s rule. Under Roberts, this court has expressly overruled other precedent dating back to the 1970s, so his vote in June Medical should give scant hope to those wishing the court to continue to interpret the Constitution to protect abortion rights.

 

As a constitutional scholar at a top law school, McConnell surely knows all this. One can only speculate why he omitted it from his op-ed. Regardless of his motivation, the people of the United States should not be fooled into thinking that the replacement of Ginsburg by Barrett does not dramatically increase the risk to constitutional reproductive rights.

 

David B. Cruz, Newton Professor of Law at the University of Southern California Gould School of Law, is a constitutional law expert focusing on civil rights and equality issues, including the rights of lesbian, gay, bisexual and transgender persons. He is the co-author (with Jillian Weiss) of Gender Identity and the Law (forthcoming, 2020) (Carolina Academic Press).

Damn the Consequences, Gorsuch Says

“So let the chips fall where they may
And let these matters be settled this way
We'll let our judgement get carried away”

Yesterday, the Supreme Court ruled, as described by Chief Justice Roberts in his dissent, that “a huge swathe of Oklahoma is actually a Creek Indian reservation, on which the State may not prosecute serious crimes committed by Indians.” Three and a half weeks earlier, the Court ruled that in forbidding workplace discrimination on the basis of sex, Title VII of the Civil Rights Act of 1964 forbade discrimination on the basis of sexual orientation and transgender status, a holding that Justice Alito’s dissent criticized for its “far-reaching consequences.” What do they have in common besides their potentially sweeping implications? Both are basically statutory (and, for the former, treaty) interpretation cases, both purport to adhere to the text of the relevant laws and disregard the consequences of the interpretations each adopts, and the majority opinion in each case was written by Trump appointee Justice Neal Gorsuch.

         

Yesterday’s decision in McGirt v. Oklahoma was joined by the four more liberal Justices (Ginsburg, Breyer, Kagan, and Sotomayor). It holds that an 1833 treaty between the United States and the Creek Nation established a reservation in what is now Oklahoma (and which encompasses most of Tulsa), and that the federal Major Crimes Act accordingly precludes state court prosecutions of Indians for major crimes committed in that portion of Northeast Oklahoma. Instead, any such criminal prosecutions would have to be brought by the federal government or the Creek Nation under their respective laws. In reaching its conclusion that subsequent federal laws did not disestablish the Creek Reservation, Gorsuch insists that “[w]hen interpreting Congress’s work in this arena, no less than any other, our charge is usually to ascertain and follow the original meaning of the law before us.” A court may not “favor contemporaneous or later practices instead of the laws Congress passed.” Explicitly emphasizing the point, the Court “restate[d] the point. There is no need to consult extratextual sources when the meaning of a statute’s terms is clear. Nor may extratextual sources overcome those terms. The only role such materials can properly play is to help ‘clear up . . . not create’ ambiguity about a statute’s original meaning.”

And the sweeping consequences of the Court’s decision were not a reason to change the meaning of the terms of the law. As the majority opinion summarized the argument: “If we dared to recognize that the Creek Reservation was never disestablished, Oklahoma and dissent warn, our holding might be used by other tribes to vindicate similar treaty promises. Ultimately, Oklahoma fears that perhaps as much as half its land and roughly 1.8 million of its residents could wind up within Indian country.” Yet the Court flatly rejected the argument, dismissing it because “dire warnings are just that, and not a license for us to disregard the law.”

This fealty to a textualism often indifferent to consequences where statutory text is viewed as clear  – reminiscent of Justice Oliver Wendell Holmes’s sense of duty as a judge to adhere even to “foolish” laws for “if my fellow citizens want to go to Hell I will help them. It’s my job” – also characterized Justice Gorsuch’s earlier opinion in the title VII case Bostock v. Clayton County, Georgia (discussed here). There, joined not only by the Court’s more liberal Justices but also by Chief Justice Roberts, Gorsuch insisted (with good reason) that discrimination on the basis of sexual orientation or transgender status is sex discrimination, and that Title VII therefor forbids it. His majority opinion was undeterred by the dissenters’ invocation of supposedly broad consequences of adopting that interpretation of the statute. Whether the objection was couched in terms of legislative intent or what the Court saw as the closely related notion of expected applications of a statute, Gorsuch rejected the idea that consequences of his statutory interpretation count as a reason to “decline to enforce the plain terms of the law.” This was true even though the interpretation the Court was embracing was monumental in its potential significance.

The Court in Bostock relatedly rejected the idea that “the no-elephants-in-mouseholes canon” of statutory interpretation – the idea that Congress does not hide major regulatory changes in minor statutory provision – supported the effort to limit Title VII’s notion of prohibited sex discrimination.

We can’t deny that today’s holding—that employers are prohibited from firing employees on the basis of homosexuality or transgender status—is an elephant. But where’s the mousehole? Title VII’s prohibition of sex discrimination in employment is a major piece of federal civil rights legislation. It is written in starkly broad terms. It has repeatedly produced unexpected applications, at least in the view of those on the receiving end of them. Congress’s key drafting choices—to focus on discrimination against individuals and not merely between groups and to hold employers liable whenever sex is a but-for cause of the plaintiff ’s injuries—virtually guaranteed that unexpected applications would emerge over time. This elephant has never hidden in a mousehole; it has been standing before us all along.

The fact that “undesirable … consequences” might follow from the Court’s interpretation of Title VII was a mere “naked policy appeal[,]” and to embrace that would abandon “any pretense of statu­tory interpretation.”

Justice Gorsuch’s ideas of what statutory text does and does not plainly say is contestable – as the dissents in these cases believed – but his textualist approach to statutory interpretation may lead him places that are more ideologically diverse than we might see were he not to profess that interpretive commitment.

Title VII Means What It Says, Supreme Court Rules, Cheering LGBT Workers

“But you got dreams

He’ll never take away”

In Bostock v. Clayton County, the U.S. Supreme Court ruled today that firing employees because they are “homosexual or transgender” violates the ban on sex discrimination in Title VII of the Civil Rights Act of 1964, the major federal employment discrimination statute. This is a position LGBT people have taken since shortly after the statute was enacted; it is a position long advocated by numerous legal scholars, including me. It is the interpretation of the statute that was prevailing among more recent lower court decisions, in contrast to older judicial opinions. By embracing what Justice Gorsuch, writing for the six-member majority including the more liberal Justices (Ginsburg, Breyer, Kagan, and Sotomayor) and Chief Justice Roberts, considered the “ordinary public meaning” of the words of the statute when Congress passed it in 1964, the Court has assured that countless people in the U.S. have legal protection against anti-LGBT workplace discrimination, even in states that have not themselves enacted express bans on sexual orientation or gender identity discrimination.

The Court’s decision in Bostock also has potentially much broader application. Many other statutes prohibit sex discrimination. The Bostock decision is about one specific statute, Title VII, so it does not directly, immediately require that other statutes banning sex discrimination also reach sexual orientation and gender identity discrimination. But the reasoning in the majority opinion in Bostock could well lead the Supreme Court to that conclusion in further cases. If so, then it might well rule that the Trump administration’s attempt to roll back an Obama era regulation under the Affordable Care Act (ACA), which until Friday interpreted the ACA’s ban on sex discrimination to reach sexual orientation and gender identity discrimination, is contrary to the statute and legally void.

In addition, the constitutional guarantee of equal protection of the laws has been implemented by judicial doctrine giving government more or less deference when courts review different forms of government discrimination. Age discrimination is upheld unless the reviewing court concludes the plaintiff showed the government lacked a rational basis for its action; rational basis review is a very easy standard for the government to meet. But sex discrimination gets less deference, with courts supposed to uphold it only if the government discrimination proves that its action survives a form of heightened review often called intermediate scrutiny. It’s not enough there to have a rational basis; the discrimination must serve not just a legitimate purpose but one the courts will judge “important,” and the sex discrimination cannot just be loosely connected to the purpose in any “rational” way; rather, the discrimination must be “substantially related” to the discrimination. This is a much more demanding standard, one difficult for government actors to meet. Although Bostock was grounded in the meaning of a statutory text that proscribes “discrimination” “because of” “sex,” it would not be a stretch to see the Supreme Court rule that the Bostock reasoning shows that the constitutional concept of sex discrimination embraces sexual orientation and gender identity discrimination. This would then extend protection against governmental discrimination under the Constitution even where statutes don’t reach. That could have enormous benefit for LGBT people in a variety of contexts, including the federal government’s transgender military service ban.