A Judicial Fork in The Road

By Jerold Oshinsky   |   July 2, 2020

The great Yankee baseball catcher Yogi Berra allegedly said: “If you come to a fork in the road, take it.”

This article will attempt to decipher the recent Supreme Court decisions which decisively protected the rights and interests of gay and transgender citizens and Dreamers (DACA, Deferred Action for Childhood Arrivals) and struck down as unconstitutional a Louisiana anti-abortion law. As it turns out, Chief Justice Roberts and Justice Gorsuch took the fork in the road typically occupied by the Liberal members of the Supreme Court. As a final note, I will offer some thoughts about the District Court’s decision concerning the publication of John Bolton’s book and the rights to the proceeds of those sales.

A Switch in Time Saves Nine

During the 1930s, President Franklin Roosevelt’s New Deal legislation was frustrated by decisions of the United States Supreme Court holding his programs unconstitutional. To protect the New Deal, FDR sought to increase the size of the Supreme Court from 9-15 justices and change the balance in his favor. Fortunately, one of the justices switched his vote to support the legislation, and the Supreme Court remained as we know it with nine Justices. (Another Justice Roberts, not related to the current Chief, was the deciding vote.)

The Supreme Court was in the spotlight in June 2020, with three decisions that attracted as much editorial commentary as when the Supreme Court tossed the 2000 Presidential election to George Bush over Al Gore, 5-4; allowing unfettered corporate contributions to political campaigns (Citizens United), overturning gun control legislation in D.C. and generally advancing the right wing playbook.


The Conservative world was thrilled when Mitch McConnell blocked Judge Merrick Garland from being considered for a vote to fill the vacancy on the Supreme Court. The Republicans swooned with joy when the replacement nominations of Justices Brett Kavanaugh and Neil Gorsuch were cleared by their fellow Republicans in the U.S. Senate. Both were Appellate Judges, Kavanaugh from the D.C. Circuit and Gorsuch from the 10th Circuit from Colorado and both were confirmed, with votes along party lines. The administration gleefully assumed that it had established a Conservative firewall of support on the Supreme Court.

Three More Switches in Time

There were some hints, though, that these Justices might just be somewhat freewheeling. For example, Chief Justice Roberts had cast the deciding vote to uphold The Affordable Care Act, and to block the President’s plan to add a citizenship question to the Census.

The DACA and the LBGTQ decisions in the Supreme Court were nevertheless a complete surprise and reflect opposing approaches to decision making led by the Chief Justice. The Louisiana Abortion Law decision was more predictable, and reflects a clean sweep for the liberal justices joined again by the Chief Justice.

The DACA Opinion

In the majority opinion, Chief Justice Roberts and three of the four liberal justices, Kagan, Breyer, and Ginsburg, concurred that the DHS (Department of Homeland Security) could not terminate the DACA program without factual justification for its action, especially given the fact that the Dreamers had contributed billions of dollars of value to the American economy. Justice Sotomayor would have gone even one step further and opened an inquiry into whether or not the agency conduct was unjustified under the Constitution as a violation of Equal Protection. The Court remanded the case for further consideration in the underlying tribunals.

The four dissenters in one opinion written by Justice Thomas and joined by Justices Alito and Gorsuch, and a separate dissenting opinion by Justice Kavanaugh, collectively argued that judicial review was not authorized at all by the Immigration Statutes and that the appeal should be rejected out of hand.

The bottom line after 72 pages, is that the issues are probably going back to DHS for further consideration. In the meantime, Congress has the power, if it so desires, to rectify the situation by passing expansive legislation to embody the DACA program. The issue could return to the Supreme Court sooner if another case in Texas raising parallel issues gets there first.

The LBGTQ Opinion

Not only did Chief Justice Roberts surprise the administration with his opinion in the DACA case, but in the LBGTQ case, joined by conservative Justice Gorsuch, they rejected the argument that employers could discriminate against gay and transgender people in employment. In a 6-3 opinion by Justice Gorsuch, joined by Chief Justice Roberts and Justices Sotomayor, Kagan, Breyer and Ginsburg, the Supreme Court held that it is illegal under Federal law for employers to discriminate against LGBTQ workers. The protections now include being unfairly fired, not hired or discriminated against in the workplace under Title VII of the Civil Rights Act of 1964. In the words of Justice Gorsuch, “We must decide whether an employer can fire someone simply for being Homosexual or Transgender. The answer is NO.” The three remaining Conservatives, in an opinion by Thomas and joined by Alito, dissented and held that the statutory prohibition against discrimination on the basis of sex, did not include sexual orientation or sexual identity. Justice Kavanaugh separately dissented on the same basis, reasoning that “sex” should be read in accordance with its ordinary meaning of male vs female and not its literal meaning in the modern world. His solution was to leave the decision to legislation. The total opinion with dissents is 172 pages.

The Louisiana Abortion Law Decision

Finally, in adding to one of the most momentous sessions in its history, Chief Justice Roberts joined the four liberal Justices in another cliffhanger 5-4 decision, to strike down a restrictive Louisiana abortion law whose net effect would have been to limit the state to one abortion provider at a single clinic. Four years earlier the Supreme Court had struck down as unconstitutional a similar Texas law in a 5-3 decision. Justice Breyer wrote the majority opinion in both cases and Justice Roberts was in the minority in the Texas case, and had voted to uphold the Texas law. Why the switch? Chief Justice Roberts obviously and refreshingly believes in the sanctity of the Law and that legal precedent “requires us, absent special circumstances, to treat like cases alike.” This is known to generations of students of the law as “stare decisis.”

This decision raises the ultimate question: “Is Roe v. Wade safe if the liberals maintain four seats on the Court through the next Presidential election?”

A Word About Bolton

There is some confusion about the legal status of the Bolton book. The government belatedly has attempted to stop its publication and distribution. In order to do so, the government has to show that it has a strong case on the merits and that it would be irreparably injured if not granted the injunctive relief it seeks. In a very straightforward decision, in a heated setting, experienced District Court Judge in D.C., Royce Lamberth, ruled that the government had a strong case on the merits, but could not establish irreparable injury at this time because of the already wide distribution of the book. Judge Lamberth ordered, “Defendant Bolton has gambled with the national security of the United States. He has exposed his country to harm and himself to civil (and potential criminal) liability. But these facts do not control the motion before the Court. The government has failed to establish that an injunction will prevent irreparable harm. Its motion is accordingly DENIED. It is SO ORDERED.”


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