One of the fears many commentators on the left had about the current U.S. president before he took office was that his administration would stack the courts with judges who would then overturn decades of progress on issues from civil to reproductive rights, Unfortunately, this has mostly been the case in the country’s federal courts, to which the president just made his 200th appointment.
Even more disturbing, as recently explained by the Hill, with an average age of just 48, many of these lifetime appointees will be on the bench for decades to come, more of a legacy of Mitch McConnell’s oily conservatism and grip on the country’s Senate than the fake populism of the president.
Still, in the country’s highest court, where the president has had two justices appointed over the past three and a half years, there have actually been some victories for progressive causes in the most recent session that ended last week.
In mid June, in a 6-3 decision, Trump appointee Neil Gorsuch and Chief Justice John Roberts joined with the four liberal justices, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan , in including LGBTQ communities under the provision regarding “sex” in Title VII of the 1964 Civil Rights Act. This will protect gay and trans people from being fired from their jobs for their sexual orientation or gender identity, a guarantee not offered to these communities until now in more than half of the country’s states.
As Gorsuch wrote in the majority decision, “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. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Although she died last year, Aimee Stephens, one of three litigants whose cases were heard together by the supremes, was fired from her job as a funeral director in Michigan after explaining her decision to transition to her employer after six years at her job. She will now be remembered as a person who secured basic labor rights for trans people in the United States.
Another decision a few days later resolved the status of more than 650,000 DACA (Deferred Action for Childhood Arrivals) recipients, at least for now. The 5-4 decision, with the Chief Justice again siding with the liberal justices, rebuked the current president and the Department of Homeland Security’s attempt to end legal protections given to immigrants brought to the country as children by an Obama Administration directive in 2012.
The chief justice called the current administration’s efforts to end the program, “arbitrary and capricious,” in his written opinion for the majority,
Then, at the end of June, the court decided by a 5-4 margin to guarantee at least some access to reproductive choice for women in Louisiana, where a law that would have forced at least two of the state’s three abortion clinics to shut down because of their distance from a hospital where doctors performing the procedure had established admitting privileges, was struck down by the court.
The law was seen as an attempted end run around the right to abortion guaranteed in 1973 by Roe v. Wade by making it impossible for clinics in Lousiana to operate.
As Justice Stephen Breyer wrote in the majority decision, where Chief Justice Roberts once again to tipped the scale to the liberals, “The evidence also shows that opposition to abortion played a significant role in some hospitals’ decisions to deny admitting privileges.”
As we might expect, the current occupant of the White House’s press secretary, Kayleigh McEnany, was sent out to repeat a tired argument about ‘activist judges’ despite the court’s conservative majority, saying, “Instead of valuing fundamental democratic principles, unelected Justices have intruded on the sovereign prerogatives of state governments by imposing their own policy preference in favor of abortion to override legitimate abortion safety regulations.”
After the Supreme Court session ended, Leah Litman on the web-site Slate.com made a good argument about these seeming progressive victories being as much due to the sloppiness and haste of those preparing the cases as it is that Roberts (and Gorsuch) are secret liberals, saying, “It is not that the chief justice is unwilling to change the law in conservative ways… The point is that he is not always willing to do so, particularly when the conservative efforts to change the law are so brazen, so sudden, and also happen in the lead up to an election year.”
On June 13th, another 5-4 decision where Gorsuch rather than Roberts sided with the court’s liberals reversed more than a century of injustice in Oklahoma that began with the Trail of Tears. The decision reaffirmed treaty rights and opened the door to greater sovereignty over criminal justice in indigenous territories, reiterating that as much as 50% of the state’s land belongs to five tribes: the Cherokee, Chickasaw, Choctaw, Muscogee (Creek) and Seminole nations. It was one of, if not the, most important victory for indigenous rights in the country in decades.
Despite this, as reported by Vox on June 13th, the landmark decision in McGirt v. Oklahoma was overshadowed by another case heard the same day regarding whether the current president is immune to criminal investigation by state authorities or the U.S. Congress.
While Jimcy McGirt, 71, a citizen of the Seminole nation, was convicted of three monstrous sexual offenses against a minor child and was punished accordingly, his crimes took place within land promised by treaty to the Muscogee (Creek). His lawyers argued that he should have been prosecuted in federal court as his crimes took place on tribal lands, an argument that is ultimately much bigger than just a federal trial for McGirt and could present an opening for tribal courts to eventually administer justice themselves for all but the most egregious crimes in their territories.
While authorities and the Court of Criminal Appeals in Oklahoma, whose decision in the case was reversed by SCOTUS, made the argument that the state would be overwhelmed as dangerous individuals released back into society, the truth of the matter is that the most dangerous offenders would still have to face trial in federal court and might receive even more time, as these courts would have no requirement to count time already served at the state level in their cases.
As Justice Gorsuch wrote in the conclusion of the majority opinion, “The federal government promised the Creek a reservation in perpetuity. Over time, Congress has diminished that reservation. It has sometimes restricted and other times expanded the Tribe’s authority. But Congress has never withdrawn the promised reservation. As a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right. “
Although almost everything about Gorsuch’s legal and presumed political beliefs is diametrically opposed to the thinking of progressives, in this case, his willingness to hold the United States and Oklahoma to their treaty obligations should be widely applauded and should set a strong enough precedent that other indigenous groups throughout the country will be able to begin forcing authorities to honor their treaty obligations.
While American progressives will need a laser focus on the courts in the years ahead, including perhaps advocating adding new justices to SCOTUS if possible or imposing term limits on judges given lifetime appointments, these four decisions will likely reverberate around the world and create new possibilities for justice in many places beyond the country’s borders.