Supreme Court

In Other Supreme Court News . . .

SCOTUS did more today than decide that Title VII applies to employment discrimination based on sexual orientation and transgender status.


The biggest news out of the Supreme Court this morning was the 6-3 decision holding that Title VII's prohibition on discrimination in employment "because of . . . sex" encompasses discrimination based on sexual orientation and transgender status. Yet that was not all that happened today.

Before releasing opinions in argued cases, the Court released its order list. Among other things, the Court denied certiorari in several cases asking the Court to reconsider the doctrine of Qualified Immunity. Justice Thomas dissented from the denials, as Eugene noted below.

The Court also denied certiorari in several cases challenging state and local gun regulations on Second Amendment grounds. Although circuit courts are all over the place in their interpretation and application of Heller and McDonald, the Court does not appear eager to clarify the scope of the Second Amendment right now. Justice Thomas dissented here too, joined in part by Justice Kavanaugh.

A third notable cert denial came in United States v. California, in which the Solicitor General sought Supreme Court review of a Ninth Circuit opinion largely upholding California's "sanctuary city" law. No justice wrote a dissent from the denial of certiorari, but the orders list notes that Justices Alito and Thomas would have granted the petition.

The Court also issued a 6-3 per curiam decision in Andrus v. Texas, a habeas case, finding that the petitioner had demonstrated ineffective assistance of counsel, but remanding the case to the U.S. Court of Appeals for the Fifth Circuit to determine whether the petitioner suffered prejudice as a result. Justice Alito dissented, joined by Justices Thomas and Gorsuch.

Finally, in a second decision in an argued case, U.S. Forest Service v. Cowpasture River Preservation Association, the Court held that the U.S. Forest Service has the legal authority to grant rights-of-way across (or, more precisely, underneath) the Appalachian Trail. Justice Thomas wrote the majority opinion. Justice Sotomayor, joined by Justice Kagan dissented.

Justice Thomas' opinion in Cowpasture River is an interesting blend of statutory interpretation and property law, and it reached what I believe is the correct result. As Justice Thomas noted, the grant of a right-of-way easement across portions of a national forest does not transform that forest land into lands within the National PArks, even if the trail is overseen by the National Park Service. I think this paragraph nicely summarizes the key issue:

read in light of basic property law principles, the plain language of the Trails Act and the agreement between the two agencies did not divest the Forest Service of jurisdiction over the lands that the Trail crosses. It gave the Department of the Interior (and by delegation the National Park Service) an easement for the specified and limited purpose of establishing and administering a Trail, but the land itself remained under the jurisdiction of the Forest Service. To restate this conclusion in the parlance of the Leasing Act, the lands that the Trail crosses are still "Federal lands," 30 U. S. C. §185(a), and the Forest Service may grant a pipeline right-of-way through them—just as it granted a right-of-way for the Trail. Sometimes a complicated regulatory scheme may cause us to miss the forest for the trees, but at bottom, these cases boil down to a simple proposition: A trail is a trail, and land is land.

The Supreme Court is scheduled to release additional opinions on Thursday.

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  1. The Second Amendment seems to be reduced to a second class right.

    1. Just as well, it obvious there are only 3 or 4 votes for RKBA, at least one GOP appointee is on the side of the libs.

      1. That has to be the explanation. I am assuming that all the non-Roberts conservatives would vote in a minute for cert . . . but they are uncertain if Roberts would join them in the eventual actual decision(s), and they (wisely? cowardly??) did not want to take this risk.

    2. The gun rights side doesn’t have 5 votes.

      The alternative would be they grant cert on one or more of these cases and Roberts joins the liberals to uphold restrictions.

      1. It’s almost certainly equally true that the gun control side doesn’t have 5 votes. I think neither side is confident of Roberts and therefore neither side really wants to roll the dice on a SCOTUS-level precedent.

        1. That’s my conclusion. Neither side is confident who’d win, and thus neither side is willing to risk extending/undoing precedents.

          And, this is a terrible, terrible thing to say, since the 2nd amendment is an explicit, enumerated right, and it’s getting less respect than ‘rights’ the Court pulled out of their collective ass.

          1. I think both sides are confident where Chief Justice Roberts stands, but nobody is sure where his threshold is. The First Amendment contains similar language about Congress shall make no law, yet certain restrictions are allowed. Justice Scalia, in dicta in Heller, appears to allow for this even though that has been thoroughly abused by lower courts. Not wanting a severely fractured majority opinion that does more harm than good, I think they are waiting for a case so blatantly off the rails that maybe even Justice Kagan says Heller dicta doesn’t extend that far (see Caetano v. Massachusetts).

            1. They HAD a blatantly off the rails case out of NYC, and let it be taken away from them after they’d already granted cert. That NYC law should have been struck down even if there wasn’t a 2nd amendment, just on the basis that we’re citizens, not serfs.

  2. “The Court also denied certiorari in several cases challenging state and local gun regulations on Second Amendment grounds. ”

    And by “several”, you mean, every single one without exception.

  3. And this is a “conservative” court?!?

    1. Relative to Washington? Yes, it is. A Court representative of Washington would probably have interpreted the 2nd amendment to mandate gun control, not prohibit it.

      Congress maybe fools you a bit about how they think, because they’re afraid of the voters. The Supreme court isn’t afraid of the voters, so they’re free to give us the back of their hands.

      Maybe it’s time that NRA members start camping out on Roberts’ front lawn. That sort of thing seems to actually work.

  4. Having read all nine of the comments here bemoaning the Court’s failure to take any of the gun cases: Guys, does it occur to you that maybe your position is such an extremist position that even conservative justices aren’t willing to go that far? There’s conservative, and then there’s off the reservation nuts, and your zero restrictions whatsoever approach to the Second Amendment strikes me as off the reservation nuts. Maybe the real problem with your position is that it’s too far out there for mainstream conservatives.

    1. No, all you’re doing is self-identifying as an extremist on the other side. We weren’t talking about cases where people were demanding to be permitted to own bazookas. We’re talking about cases that involved laws almost as bad, or in some cases worse, than were struck down in McDonald.

      NYC, for instance, was telling people they couldn’t leave the city with their own personal property. And to moot the case after certiori was granted, it was replaced with a law that said they could, but they’d be felons if they stopped at a gas station along the way to use the bathroom. Even nuclear waste convoys get potty breaks!

      That wouldn’t pass constitutional scrutiny if it were regulating stamp collections, let alone anything you have an explicit constitutional right to. Never mind that both laws violated a perfectly on point federal law guaranteeing against state interference the right to transport firearms from any place you legally owned them to any other place you could legally possess them, regardless of intervening laws.

      And that’s just one of the outrageous laws being challenged. Discretionary licensing of a constitutional right, for instance; That flatly contradicts the very concept of a right!

      1. Aside from the fact that you don’t see abortion as being a right, how is that different from saying you can have an abortion, but your doctor must have hospital admitting privileges in an area where no hospital will grant admitting privileges to doctors who do abortions? Or that you have to have a medically unnecessary ultrasound or vaginal examination first? Or that you have to wait 48 hours to have one, which prices out low income women? Or that you have to listen to a “please don’t kill your baby” screed first?

        Not saying I approve of it when either side does it, but if you’re going to complain that liberals make it cost prohibitive to exercise your right to keep and bear arms, you’d be much more persuasive if conservatives weren’t simultaneously making it cost prohibitive to exercise the right to have an abortion. The tactic is exactly the same, and if one side gets to do it, so does the other.

  5. Justices Alito and Thomas really go the extra mile to impress their bosses.

  6. I’m very surprised the court didn’t take up at least one of the may-issue concealed carry cases, since there is a bona fide circuit split with the DC circuit in Wrenn. You’d think the impetus to create a single nationwide precedent would override any partisan concerns over what that precedent might be

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