Last updated on January 27th, 2021 at 11:11 am
When Donald Trump appointed Justices Neil Gorsuch and Brett Kavannaugh to the Supreme Court bench, hopes certainly dimmed substantially for a court majority that would vigorously protect, much less expand, basic civil liberties, especially for women, LGBTQIA people, people of color, and immigrants.
Worries abounded, with good reason, that the court might function effectively as an active arm for, rather than stalwart defense against, legally advancing the longtime conservative dream of rolling back abortion rights (and hence civil rights for women), denying LGBTQIA basic civil rights, restricting immigrants’ rights, upholding the legal underpinnings of institutionalized racism, furthering voter suppression, and more.
This past week featured some major rulings with a super-sweet outcome for LGBTQIA employment and workplace rights and a gargantuan sigh of relief for those protected under the Obama administration’s policy of Deferred Action for Childhood Arrivals (DACA).
For the progressive and humane-minded people living in America, these decisions induced, no doubt, a political high, as if they’d just drawn a long hit from a tall judicial bong loaded heavily with civil rights.
As with any high, there is a coming down that returns one to a position for sober assessment.
Watching Slate’s astute and experienced legal correspondent Dahlia Lithwick’s commentary last Monday evening, on the heels of the issuance of the decision banning discrimination in employment against LGBTQIA people written by Gorsuch, I was put in this sobering place.
Speaking on Lawrence O’Donnell’s MSNBC show The Last Word, Lithwick characterized the ruling as a “relatively easy” win the conservative-leaning court could grant the “left” and cautioned that it is “always important to look at the whole board.” She opined that from a political perspective that the court was likely not inclined to grant Trump a series of 5-4 decisions in an election year with a number of important cases barreling down the docket on abortion rights, the release of Trump’s financial records, as well as a number of cases on religious liberties. Given this “relatively easy” decision for the court, Lithwick forecast the need “to brace for some big, big losses” coming down the pike in these major cases in which, she predicts, the court may very well rule favorably for Trump.
Lithwick’s commentary, which invariably strikes me as insightful and sage, gave me pause to reflect on the moment we are inhabiting in the nation’s civil rights history.
Let’s put this decision in perspective. The Supreme Court decided that LGBTQIA people, at least when it comes to employment and their lives in the workplace, are not second-class citizens.
That we necessarily and rightfully applaud the decision is in some ways appalling in itself—that we have to, that there is a debate at all about whether the nation’s civil society should allow second-class citizenship and legalized discrimination.
But this is where we are. And what is sobering is that three legal minds deemed deserving of making the most vital decisions determining the law of the land voted in favor of upholding the legality of discriminating against LGBTQIA people to have an equal opportunity to make a living. I guess the glass is 2/3 full, but the 1/3 part that is empty sure does inspire anxiety and alarm.
Justice Samuel Alito, in issuing his dissent, penned a screed that drones on for scores of pages with scads of appendices, citing multiple dictionaries, arguing that word “sex” as used in the 1964 Civil Rights legislation outlawing discrimination “on the basis of sex,” does not in any way refer to sexual orientation or gender identity. The dissent is rather rabid, suggesting that far from Alito exercising a blind justice free from passion and prejudice, that he is rather blinded by his passion and prejudice in administering justice.
All this to say that as we evaluate this week’s major decisions, one thing that should stand out as clear as ever is the danger Trump poses—and has posed—to the nation’s most basic political ideals of equality, of civil rights for all.
And the conservative majority on the Supreme Court is still, as Lithwick I believe intimates, something of a fox guarding the chicken coop, or the civil rights coop.
Let’s not forget it was Roberts who played a large part in dismantling major provisions of the 1965 Voting Rights Act, effectively claiming, like so many in the Trump administration now, that racism no longer existed, making the protections afforded in that act no longer necessary..
And this court recently denied many Wisconsin voters the right to vote by mail and head to the polls in the midst of the deadly coronavirus pandemic.
And, yes, last Thursday Chief Justice John Roberts was the conservative swing vote in denying Trump’s bid to dismantle DACA, providing enormous relief to many living in America.
It is useful to recognize, though, that Roberts did not undergird DACA with any constitutional justification or protection. He simply ruled that the Trump administration did not present adequate arguments and reasons to counter the rationales undergirding the Obama administration’s policy. For that reason, Roberts judged this attempt to dismantle DACA as “arbitrary and capricious.” He then, however, spelled out a path for the administration to have the court re-visit the case, writing that the Department of Homeland Security could revise its arguments, giving them a sounder legal basis, to highlight the constitutionality of the Trump administration’s hateful effort. And Sonia Sotomayor was the only justice to validate the argument that the Trump administration was acting out of racial animus.
Can anyone listening to Trump talk about people of color and immigrants from south of border as criminals and rapists really not see racial animus? Apparently eight out of nine justices can’t or refuse to see racism at work in U.S. culture and the nation’s highest political offices. Distressing to say the least.
And the assault continues on people of color and women. A case in progress in Texas has been seen as having a legitimate attempt to dismantle DACA. Tennessee just passed a “heartbeat” law that will greatly restrict women’s access to abortion in that state.
I guess we do need to breathe a sigh of relief after this week’s rulings, but we need to recognize the tenuousness of that breath.
Trump won’t stop his attacks on civil rights, on humanity itself; and the Supreme Court is no firewall in which we can have faith.
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