June 15, 2020: Blue Monday at the Supreme Court

Conservatives went 0-4.

|The Volokh Conspiracy |

Monday, June 15, 2020 was a significant day at the Supreme Court. In the span of 30 minutes, the Justices handed conservatives four defeats.

  1. The Court denied review in ten Second Amendment cases; Justices Thomas and Kavanaugh dissented.
  2. The Court denied review in President Trump's challenge of California's sanctuary state laws; Justices Thomas and Alito dissented.
  3. The Court GVR'd a Texas death penalty case; Justices Thomas, Alito, and Gorsuch dissented.
  4. The Court decided Bostock; Justices Thomas, Alito, and Kavanaugh dissented.

I refer to yesterday as Blue Monday, both for the color of the mood among conservatives, and for the political shading of the decisions. Blue Monday will resonate for some time to come.

The only other comparable day on the Supreme Court's calendar is June 26, which I have long referred to as St. Anthony's Day. On this day, Justice Kennedy wrote the majority opinions in Lawrence (2003), Windsor (2013), and Obergefell (2015). Indeed, the Court held a special sitting on Friday June 26, 2015 to keep the tradition alive. That timing also allowed the decision to be issued in advance of pride parades that weekend. This year June 26 falls on a Friday. I doubt the Supreme Court will issue all of its decisions by then.

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  1. Conservatives are blue and liberals are gloating. For them, it’s not just about winning on the issues, it’s about making conservatives feel bad. That is a very illiberal frame of mind…not one that is likely to lead to success in the long term. Let me quote from Gandhi about a lawyer’s role in resolving conflict:

    “As lawyers the counsel on both sides were bound to rake up points of law in support of their own clients. I also saw for the first time that the winning party never recovers all the costs incurred. Under the Court Fees Regulation there was a fixed scale of costs to be allowed as between party and party, the actual costs as between attorney and client being very much higher. This was more than I could bear. I felt that my duty was to befriend both parties and bring them together. I strained every nerve to bring about a compromise. At last Tyeb Sheth agreed. An arbitrator was appointed, the case was argued before him, and Dada Abdulla won.
    But that did not satisfy me. If my client were to seek immediate execution of the award, it would be impossible for Tyeb Sheth to meet the whole of the awarded amount, and there was an unwritten law among the Porbandar Memans living in South Africa that death should be preferred to bankruptcy. It was impossible for Tyeb Sheth to pay down the whole sum of about £37,000 and costs. He meant to pay not a pie less than the amount, and he did not want to be declared bankrupt. There was only one way. Dada Abdulla should allow him to pay in moderate installments. He was equal to the occasion, and granted Tyeb Sheth installments spread over a very long period. It was more difficult for me to secure this concession of payment by installments than to get the parties to agree to arbitration. But both were happy over the result, and both rose in the public estimation. My joy was boundless. I had learnt the true practice of law. I had learnt to find out the better side of human nature and to enter men’s hearts. I realized that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby – not even money, certainly not my soul.”

    If you really want to settle a case, you need to find a resolution that both sides can live with. That is not what the Court gave us with Bostock. The Court gave the progressives a total victory and a first step down a long road of litigation on many issues.

    1. Right. Watch the courts’ dockets fill up with cases of these disgusting fairies getting it on in the office closet and then whining when they’re fired.

      1. How does “disgusting fairies” register on the civil standard the Volokh Conspiracy Board of Censors claims to have, Prof. Volokh?

        An apology would make your hypocrisy less noteworthy.

      2. I don’t want to go full RAK — never go full RAK! — but “disgusting fairies” is precisely the sort of comment that’s likely to encourage and intensify gloating. You can express sadness at the result and/or the reasoning without offering insults at the same time.

        1. Not too concerned about what the left does at this point, as I see them as enemies.

          1. You’re still not helping your own side (or, to some extent, mine, to be perfectly clear). A pox on you!

    2. For them, it’s not just about winning on the issues, it’s about making conservatives feel bad.

      Some gloating is to be expected, but in general there’s a *lot* more ‘to own the libs’ than ‘to own the cons.’

      Somehow I doubt you invoke Ghandi when you side wins a legal victory.

  2. The Second Amendment denials are probably the more surprising of the 4. There is plenty of speculation as to why, but my guess is they couldn’t get four votes for cert without some assurance of a 5th vote that would set some real rules with teeth.

    The petitions out of New Jersey were perfect. Great example of highly restrictive licensing outside of the residence (de facto “no issue”) and a true circuit split.

    No better case is going to come along in the intervening years. If gun rights activists though the Court was eventually going to give them some teeth to renew fights in federal court, they were wrong. It is back to the legislative sessions with that work. And fingers crossed the Court doesn’t do anything that will make it more difficult on the legal front.

    1. The legislative sessions are a lost cause in the blue states where these laws came about. We’ve tried the first three boxes of liberty. It’s soon going to be time for the fourth.

      1. Quit whining.

        On second thought — keep yapping, with all of the other all-talk right-wing pussies. The bitter muttering of conservatives is a traditional part of the soundtrack of American progress.

        1. Only if you consider giving “marriage” licenses to guys who like to erupt inside another man’s rear to be “progress.”

          1. Hey, I remember you! For a bit I thought we had two naked white supremacists here, but it’s RestoreWestern returned from the deadly!

          2. You know, you sure have a huge fixation on gay anal sex.

            1. I’m not the one doing it. You and your friends in the Democrat Party are.

              1. You’re just talking about it incessantly; it’s obviously a subject that you find interesting or you wouldn’t spend so much time thinking and talking about it.

            2. Krychek_2
              June.16.2020 at 10:22 pm
              You know, you sure have a huge fixation on gay anal sex.

              Aktenberg78
              June.16.2020 at 11:12 pm
              I’m not the one doing it.

              Interesting exchange.

      2. Threats of political violence? Been hearing that since the ACA passed.

        Not the sign of a side that has the courage of their arguments.

  3. Imagine how much happier and successful clingers would be were they merely to ditch the gay-bashing and other bigotry.

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