When the Supreme Court term began last fall, judicial conservatives were hoping that the court’s strong 5-4 majority, bolstered by two of President Donald Trump’s nominees, would deliver a clean sweep for conservatives on hot button issues.
Instead, with 13 cases remaining, the court in recent weeks has blocked Trump’s efforts to terminate DACA, issued a landmark opinion in favor of LGBTQ rights and left court watchers wondering what’s next.
Justice Samuel Alito dissented in both cases. Although Alito penned a victory for the government in an immigration case last week, and he may deliver wins for the right in other areas such as religious liberty before the term is over, his unhappiness with the court’s direction has been palpable.
The 70-year-old George W. Bush nominee, who joined the court in 2006, has drawn upon unusually strong language of late to make his point, picked a part the majority’s reasoning in writing, and on one occasion dominated oral arguments to press his perspective. In short, Alito has not been shy to express his frustration.
LGBTQ rights under the Civil Rights Act
Justice Neil Gorsuch stunned conservatives on June 15 when he and Chief Justice John Roberts sided with the liberal justices to deliver a landmark win to LGBTQ Americans. At issue in the case was a 1964 civil rights law that barred workplace discrimination “because of” sex. The 6-3 majority interpreted the law to encompass claims of sexual orientation and gender identity.
“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Gorsuch wrote. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids,” he said.
Gorsuch’s decision was grounded in “textualism,” he said, the tool of judicial interpretation championed by the late Justice Antonin Scalia to focus on the exact words on the page.
Over 107 pages, including a lengthy appendix, Alito, joined by Justice Clarence Thomas, lambasted the opinion.
“There is only one word for what the court has done today: legislation,” Alito wrote.
He called the majority’s action “preposterous” on one occasion. Gorsuch’s opinion, Alito said, spent “many pages” discussing matters that are “beside the point.”
“The arrogance of this argument is breathtaking,” Alito said, and vowed to show that “there is not a shred of evidence” that any member of Congress back in 1964 thought the law was meant to include LGBTQ workers.
Alito accused Gorsuch of misreading Scalia. “The words of a law, (Scalia) insisted, mean what they conveyed to reasonable people at the time,” Alito wrote.
“If today’s decision is humble, it is sobering to imagine what the court might do if it decided to be bold,” Alito said.
This term, the court was poised to rule on a major Second Amendment case for the first time in a decade. It was a moment anticipated by supporters of gun rights who believe that lower courts have been thumbing their noses at Supreme Court precedent by largely upholding limits on firearms purchases and transport across the country.
The New York law regulated where licensed handgun owners could take a locked and unloaded handgun.
It was an idiosyncratic law, and supporters of gun regulations feared the justices might use it as a vehicle to expand upon a landmark opinion issued by Scalia back in 2008. As such, after the justices agreed to hear the case, the law was amended.
Ultimately, citing the fact that the law had been changed, the justices sidestepped the issue, sending the case back to the lower court for further consideration.
Alito was furious.
“By incorrectly dismissing this case as moot, the court permits our docket to be manipulated in a way that should not be countenanced,” Alito wrote in a dissent joined by Thomas and Gorsuch. He noted that after the court had agreed to hear the case, the city “sprang into action to prevent us from deciding this case” and that its public safety concerns “evaporated.”
“We have been particularly wary of attempts by parties to manufacture mootness in order to evade review,” he said.
“History provides no support for a restriction of this type,” he added, saying that the court should have held that the law violated the Second Amendment.
To add to Alito’s insult, in the following weeks the court denied several requests to take up the Second Amendment again next term.
Alito’s frustration could also be seen during oral arguments for a major abortion case concerning a Louisiana abortion law that requires doctors to have admitting privileges at a nearby hospital.
Back in 2017, when the controversial law was set to go into effect, Roberts sided with the liberals to block it until the court could hear the case.
At oral arguments in March, Alito dominated at one point, pressing his point that he did not think that the doctors and clinics had the legal right to stand in the shoes of patients to bring the suit. It’s an argument that Thomas has stressed in the past, but no other conservatives picked up on it during oral arguments.
Alito repeatedly pressed a lawyer for abortion clinics on what he suggested was a conflict of interest between the clinics and state laws meant to regulate the doctors.
Twice he told the lawyer that he was amazed by her position.
“The constitutional right at issue is not a constitutional right of abortion clinics, is it? It’s a right of women,” Alito said, suggesting the challenge should be dismissed and the law allowed to go into effect.
The point on the issue of “standing” is critical. If the court were to say that clinics and doctors couldn’t bring such cases, it would make it much harder for regulations to be challenged and a devastating blow to supporters of abortion rights. The court has yet to rule in the case.
Another point of contention came in April, when Gorsuch, writing for a 6-3 court, said that unanimous jury verdicts are required in state criminal trials for serious offenses. The petitioner in the case, Evangelisto Ramos, argued that Louisiana’s non-unanimous jury provision violated his federal constitutional right to trial by jury and that the law had racist roots meant to diminish the votes of minority jurors.
Ruling for Ramos, Gorsuch picked up on that line of argument. “In fact, no one before us contests,” Gorsuch wrote, that courts in the state “have frankly acknowledged that race was a motivating factor” in adopting the rules.
Again dissenting, Alito, responding to one part of Gorsuch’s opinion, wrote that the Court “tars” Louisiana “with the charge of racism.” If Louisiana had originally adopted its law for that reason, it would be “deplorable,” he said, but noted that the state had re-adopted the rules in 1974 with a stated purpose having nothing to do with racism.
He noted that the British Parliament enacted a law allowing non-unanimous verdicts some years ago. And the Constitution of Puerto Rico permits non-unanimous verdicts.
“Were the framers of that Constitution racists?” he asked rhetorically. “Of course not,” he answered, expressing unhappiness with the situation. “We should set an example of rational and civil discourse instead of contributing to the worst current trends.”