On LGBT Rights, a Roll of the Dice at Court

      For several decades now, liberal advocacy groups have been wary of bringing test cases up to the Supreme Court for fear that the built-in conservative majorities would dash their hopes by turning an unsettled legal issue into a nationwide rule on the other side. That concern surfaced quickly after the justices agreed this week [April 22] to hear test cases later this year to determine whether the federal civil rights law enacted in 1964 prohibits employers from discriminating against LGBT employees or job applicants.
      "Supreme Court Will Smash Gay Rights Next Term" was the banner headline on the downbeat column that Elie Mystal, executive editor of the legal affairs blog Above the Law posted from his New York City watching post three hours after the Court's orders were issued in Washington. Mystal acknowledged that the Court had to take the cases, given a circuit split on the issue, but he warned that worse than a circuit split was "the Supreme Court deciding the issue poorly."
      Two other liberal Supreme Court commentators followed within a couple of days to warn more ominously that the Roberts Court conservatives might use the cases to scrap precedents that have extended the Civil Rights Act's prohibition against sex discrimination to cover sexual harassment — whether opposite- or same-sex harassment — and hostile work environments. In his column for the online magazine Slate, Mark Joseph Stern warned that the rulings in the three cases accepted for review "could demolish sex discrimination law as we know it." Ian Milhiser, legal affairs columnist for the progressive news site ThinkProgressMemo, similarly warned that the Court might be "on the cusp of rewriting decades of sex discrimination law" that interpreted the 1964 law to prohibit sexual harassment and gender stereotyping in the workplace.
      All three commentators, friends and colleagues of mine, argue that the provision in the 1964 law's Title VII that prohibits discrimination "on the basis of sex" naturally and inevitably prohibits discrimination on the basis of sexual orientation or gender identity. But they all fear that the five Roberts Court conservatives, including the chief justice himself, will reject what has become a jurisprudential consensus on a broader understanding of the law.
      With all that doom and gloom, the New York Times' former Supreme Court correspondent, Linda Greenhouse, stepped in to argue against making "a snap judgment" about the outcome of the cases before merits briefing even begins. Greenhouse analyzed the justices' protracted consideration of the cases before granting certiorari as a sign that, in fact, the conservative bloc's minds may not be fixed on ruling against LGBT rights.
      As a reminder, Title VII law broadly prohibits any job-related discriminatory treatment "on the basis of [an] individual's race, color, religion, sex, or national origin" (emphasis added.). The late-added prohibition against sex discrimination, intended by opponents as an impossible-to-swallow poison pill, was debated in Congress only cursorily before being signed into law as the first of the three major civil rights laws enacted in the mid-1960s.
      No one can seriously argue that Congress intended the law to protect gay men, lesbians, or transgender individuals against discrimination in the workplace. Gay rights advocates lobbied for years in Congress and in state capitals to add sexual orientation and gender identity to anti-discrimination laws with mixed results before concentrating their efforts on achieving their goal through the courts.
      By now, however, dozens of state and federal courts, including two of the federal circuit courts of appeals, have ruled that way, according to a compilation by the federal Equal Employment Opportunity Commission (EEOC). The judges who have adopted that position include a number of well-known conservatives, as Stern and Greenhouse both note. Greenhouse notes as one example that Judge José Cabranes concurred in the Second Circuit decision now under review by stating matter-of-factly that sexual orientation "is a function of [an individual's] sex."
      The plaintiffs in the three cases represent two of the initials in the LGBT alphabet. The former New York City skydiving company Altitude Express fired instructor Donald Zarda in 2010 after he sought to reassure a female customer by telling her that he was gay; he died four years later in an accident and the case, Altitude Express Inc. v. Zarda, is now litigated by his sister and his former partner. Gerald Lynn Bostock, petitioner in Bostock v. Clayton County, Georgia, says the county's juvenile court system fired him in 2013 on a pretext after supervisors learned of his participation in gay community activities.
      The EEOC is representing the interests of the plaintiff in the third case, R.G. and G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission: Amiee Stephens, a transgender woman, who was fired by a Detroit-area funeral home after reporting for work post-transition dressed in women's clothes.  Greenhouse spotted an encouraging sign in the Court's rephrasing of the question presented in the case to include whether Title VII "prohibits sex stereotyping . . . "
      With no inside information on the justices' months-long deliberation before teeing up the cases, the best that can be said now is that LGBT advocates are hoping for a favorable roll of the dice. They have been in this situation before. In 1986, a test case on anti-sodomy laws turned into the unfavorable, later-overruled decision in Bowers v. Hardwick upholding those laws. Four years ago, however, they marked their greatest legal victory to date with the Court's 5-4 decision in Obergefell v. Hodges (2015) guaranteeing marriage rights to same-sex couples nationwide.
      Justice Anthony Kennedy's retirement from the Court leaves LGBT rights advocate without their most effective ally among the nine. The four liberal justices can be counted on to support LGBT rights in the new cases, but the five conservatives — including Kennedy's successor, Brett Kavanaugh — have no record of supporting LGBT protections in any of their prior cases.
      Roberts' impassioned dissent in the marriage equality cases casts a dark cloud over hopes that he might help form a five-vote majority for LGBT rights in the new cases. But the doomsaying from liberal commentators makes clear this much: a ruling to limit Title VII protections for LGBT employees will come, if it does, at the expense of the conservatives' professed commitment to "plain text" statutory interpretation and respect for precedent. 

With Trump's Lies Detailed, No Charges, No Exoneration

      Lies, lies, lies, and more lies. As president, Donald Trump's lies number in the thousands, according to the fact-checking news site PolitiFact. Now, thanks to the Mueller Report, we know that all the president's men are liars too — and White House press secretary Sarah Huckabee Sanders as well.
      With Trump complaining all the while about how long the special counsel's investigation was taking, several individuals associated with the Trump campaign were lying to FBI agents about the extent of their contacts with Russian-affiliated individuals. The lies "materially impaired the investigation," the 448-page report notes at page nine of the executive summary.
      Trump himself lied on several occasions as he sought to conceal the extent of his efforts to derail — or, in legal parlance, obstruct —  the special counsel's investigation. Trump lied, the report concludes, when he denied news reports that he had instructed White House counsel Don McGahn to fire Robert Mueller as special counsel.
      The Mueller Report cites Trump's purported directive as one of the ten episodes it identified as suggesting obstruction of justice. McGahn refused what he called a "crazy shit" directive. Trump's denials notwithstanding, McGahn's accounts of the after-hours telephone conversation were consistent and corroborated by his notes, according to the report.
      Sanders was fingered for one notable lie, which was also aimed at concealing Trump's obstructive efforts. She lied in the White House briefing room when she claimed to have heard from "countless" FBI agents voicing a lack of confidence in the fired FBI director James Comey. Sanders conceded to the special counsel's office that she had "no basis" for a statement that, in context, supported what was then Trump's explanation for firing Comey.
      Asked on Friday [April 19] by Good Morning America's George Stephanopoulos to explain herself, Sanders minimized the lie by describing it as an unscripted "spur of the moment" reply to a reporter's question. Put differently, Sanders instinctively makes up stuff as needed to deflect reporters' questions. As of the weekend,  Sanders appeared to be at no risk of admonition or dismissal for this lie or any of her others.
      Attorney General William Barr, still new to Trump's orbit two months after his party-line Senate confirmation, added to the Trump playbook of deception and misdirection with a 20-minute statement about the Mueller Report before it was even released. Once released, the report showed that Barr misled or flatly lied in among other remarks depicting Trump as cooperating completely with the investigation and in describing Mueller's decision not to seek to indict the president for obstruction of justice.
      Short of complete cooperation, Trump declined the special counsel's request for an in-person interview and gave written answers that the report describes as incomplete and filled with claimed lapses of recollection. Mueller considered a subpoena to force the president to testify under oath but backed off rather than take on a protracted legal fight.
      Barr was also misleading in suggesting, just as he had done in his initial summary of the report a week earlier, that Mueller had left it up to him to determine whether Trump could be indicted for obstruction. Instead, Mueller bowed to the never-tested Office of Legal Counsel memo that the president is not subject to indictment while in office and followed by saying that it was up to Congress to decide what to do. "We concluded that Congress has authority to prohibit a President's corrupt use of his authority in order to protect the integrity of the administration of justice," the report states.
      Barr misquoted the report when he said it found "no collusion" between the Trump campaign and the Russians. To the contrary, the report specified that "collusion" has no legal meaning and concluded more tentatively. "The investigation did not establish that the Campaign coordinated or conspired with the Russian government in its election-interference activities," the report states.
      Still, Barr deserves some credit for congratulating the special counsel's office for confirming what Trump has never acknowledged: the systematic efforts by Russian agents to interfere in the 2016 presidential election. With that said, Barr nevertheless passed lightly over what the report calls "numerous links between the Russian government and the Trump campaign."
      As the nation's chief law enforcement officer, Barr might have been expected to highlight what the special counsel's office actually accomplished by way of prosecutions. That record puts the lie to Trump's repeated description of the investigation as a witch hunt. In fact, five Trump associates have already pleaded guilty to or been convicted of lying to the FBI or Congress: former campaign chairman Paul Manafort, former campaign advisers Rick Gates and George Papadopoulos, former national security adviser Michael Flynn, and Trump's former personal attorney Michael Cohen. Meanwhile, Trump's close associate Roger Stone awaits trial on charges of making false statements.
      The report lists Trump's false pre-election denials of the links between his campaign and the Russians as the beginning of his arguably obstructive conduct followed by, among other actions, the firing of Comey and the thwarted effort to remove Mueller. With those episodes detailed, the report explicitly avoids exonerating Trump, the president's claims to the contrary notwithstanding: "[I]f we had confidence after a thorough investigation of the facts that the President did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment."

At Southern Border, Malign Neglect for "Crisis"

      The so-called crisis at the United States' southern border is a challenging policy issue that President Trump has exaggerated for political purposes and that his administration has mishandled through legal mistakes and administrative indifference.
      In this, the most lawless presidency in U.S. history, news of another Trump administration policy initiative ruled illegal by a federal judge provokes nothing more than a "dog-bites-man" reaction. The administration's plan to send border-crossing asylum applicants back to Mexico was ruled late last month [March 27] to run afoul of immigration law and to have been adopted without following proper administrative procedure.
      Meanwhile, the Department of Homeland Security, the umbrella Cabinet-level department responsible for immigration and other important national security issues, has an acting secretary after Trump eased Kierstjen Nielsen out of the post. Nielsen resigned this week [April 7] under duress, according to anonymous friends quoted in various news accounts, after drawing Trump's scorn for nixing some of his tough-talking policy ideas as contrary to law.
      Trump has been whipping up hysteria about the growing number of migrants seeking asylum at the southern border ever since the months leading up to the 2018 midterm elections. In demagogic rhetoric, Trump tried with only limited success to whip up his political base by depicting the refugees fleeing violence and disorder in their Central American homelands as would-be invaders.
      Admittedly, the growing number of refugees at the border pose difficult challenges for an immigration system overburdened along the 2,000-mile long southern border and also in U.S. immigration courts. With 424 judges, immigration courts currently have a backlog of 850,000 cases. Asylum cases contribute to that backlog, but they account for fewer than one-third of the total, according to a report published last fall by the pro-immigration Migration Policy Institute.
      The institute's 35-page report, coauthored by Doris Meissner, the Clinton administration's commissioner of what was then the Immigration and Naturalization Service (INS), sought to cut through the political divisions on the issue by proposing a package of administrative steps to reduce the now customary long wait times in resolving asylum cases. The key to the streamlining package is to get more cases decided administratively within the U.S. Citizenship and Immigration Services (USCIS) asylum division without bucking them to the courts.
      The report notes that the backlog of asylum cases was reduced from more than 400,000 in the mid-1990s to fewer than 100,000 from 2005 through 2014, thanks in part to a doubling of the number of asylum officers within USCIS. The system had been "fair, timely, and well managed," the report concludes, until it fell behind as the number of asylum applicants increased fivefold from 28,000 in 2010 to more than 140,000 in 2017.
      The customary delays of anywhere from two to five years create what the report calls "incentives for individuals without qualifying claims to apply" because they can remain within the United States and perhaps obtain work authorizations while their cases are pending. In the meantime, individuals with qualifying claims for asylum wait in the queue. The results, the report concludes, "compromise both humanitarian protection and immigration enforcement missions."
      Francis Cissna, the Trump administration's USCIS director, spoke favorably about the institute's report at a program it cosponsored in November at Georgetown Law School. But Sharon Pierce, a policy analyst who works with Meissner at the institute, says they have heard nothing concrete from the administration since then.
      "The Trump administration is not interested in solving the problem," Sen. Chris Van Hollen, a Maryland Democrat, remarked on MSNBC on Friday [April 12]. "They're much more interested in the politics of it."
      The administration is focused not on making the system work better but making it tougher. Thus, Attorney General Jeff Sessions instituted a major policy change during his tenure at the Justice Department by eliminating domestic or gang violence as grounds for asylum. As a result, the percentage of asylum applications approved has fallen by more than half from close to 50 percent to less than 25 percent.
      Nielsen announced another policy change in December. The so-called Migrant Protection Protocols provided that asylum applicants apprehended after illegal entry would be returned to Mexico instead of being detained for expedited removal proceedings. Nielsen called it "an historic action to confront illegal immigration," but U.S. District Court Judge Richard Seeborg called it illegal in a 27-page ruling  issued early this week [April 8].
      Individual plaintiffs in the case, originally styled as Innovation Law Lab v. Nielsen, presented what Seeborg called "uncontested" evidence that they fled their homes in El Salvador, Guatemala, and Nicaragua to escape "extreme violence," including rape and death threats. He found that returning them to Mexico ran counter to an international protocol codified as U.S. law that prohibits returning aliens to "places where they face undue risk to their lives or freedom."
      As with the unbuilt border wall, Trump prefers sounding tough to being effective. He threatened to close the southern border completely, deterred not by Nielsen's warning that the move would be illegal but by predictions that it would result in economic chaos. Among other steps to address the problem, one would be to conduct asylum interviews in the migrants' home countries instead of at the border. Increased aid to those countries might help, but Trump instead threatens to cut it off.
     To make it worse, the administration's "zero tolerance" policy of arresting all illegal border crossers results in a true humanitarian crisis marked by kids locked up in cages and aduilts jailed in primitve conditions.So far, the administration's policy of malign neglect appears to be having no effect other than making the non-crisis worse.

At Supreme Court, Open Door for Gruesome Executions

      Raymond Bucklew may deserve to die for the violent crimes he committed 30 years ago as his girlfriend was breaking up with him. But he does not deserve to die a torturous death as the state of Missouri carries out the legally upheld death sentence.
      The Supreme Court has just used Bucklew's case, however, to open the door to executions in the future that will mock the Eighth Amendment's prohibition against "cruel and unusual punishments." The 5-4 majority in Bucklew v. Precythe has apparently adopted a legal rule previously crafted only by Justice Clarence Thomas that the state can use a method of execution with a substantial risk of severe pain during the procedure as long as the state does not deliberately intend to inflict unnecessary pain.
      Bucklew's case drew only limited attention as he argued through three levels of federal courts over the past five years that he has a rare medical condition that will result in severe pain as he lies dying during a lethal injection. But Justice Neil Gorsuch's majority opinion turned the medical oddity of Bucklew's case into an invitation for gruesome deaths for condemned inmates in the future.
      Bucklew has a rare medical condition — technically, cavernous hemangioma — characterized by the formation of huge clumps of blood vessels in his head, neck, throat, and airway. That condition, he argued on the basis of detailed medical evidence presented in a federal court trial, would interfere with the sedative used in a lethal injection and in effect would cause him to suffocate to death on his own blood.
      "[T]he Eighth Amendment does not guarantee a prisoner a painless death . . . ," Gorsuch wrote in a critical part of the 31-page opinion rejecting Bucklew's claim. Gorsuch pivoted from that unremarkable statement to quote Thomas's passages from two prior decisions that would disapprove of only those methods of execution that "superadd terror, pain, or disgrace" in carrying out the death sentence.
      Thomas wrote that passage for the first time in an opinion joined by only one other justice, the late justice Antonin Scalia, in rejecting a Kentucky inmate's Eighth Amendment challenge to the state's three-drug lethal injection protocol. Chief Justice John Roberts' plurality opinion in Baze v. Rees (2008) set out a different test that death row inmates can challenge a method of execution if it carries a substantial risk of severe pain during the procedure.
      Gorsuch in effect incorporated Thomas's test, which garnered only two votes, on the ground that those two votes were necessary for the majority result in Baze. It was, as Slate's Supreme Court correspondent Mark Joseph Stern called it in a critical article, a remarkable "sleight of hand." Worse, it amounted to jurisprudential alchemy by converting a minority view into supposedly authoritative precedent.
      "Neil Gorsuch Just Made Death Worse," was the headline on a strongly argued critique
that Elie Mystal,  managing editor of the legal affairs blog AbovetheLaw, wrote for The Nation. "In an appalling majority opinion," the deck headline added, "Gorsuch endorses pain-filled deaths for people subjected to capital punishment."
      Under Baze, an inmate challenging a method of execution must offer a "feasible and readily implemented alternative method" that would reduce the risk of severe pain. Bucklew complied with that bizarre requirement by proposing lethal nitrogen gas; the state's lawyers answered that nitrogen gas is an untested method that no state has adopted.
      Gorsuch, it will be recalled, faced his most difficult hurdle in his Senate confirmation hearing in April 2018 for his lack of sympathy to the "frozen trucker" who was fired for driving his cab with inoperable heater to a place where he could escape from subfreezing temperatures. Thus, it is no surprise that Gorsuch had no sympathy for Bucklew, who shot and killed his girlfriend's male companion and then abducted her at gunpoint and raped her at a distant location.
      Gorsuch found Bucklew's evidence on the risks of Missouri's planned lethal injection too weak to avoid summary judgment at the trial level in the state's favor. Writing for the four liberal dissenters, Justice Stephen G. Breyer argued correctly butto no avail that Bucklew had "easily established a genuine issue of material fact regarding whether an execution by lethal injection would subject him to impermissible suffering."
      Not content with condemning Bucklew to a painful death, Gorsuch went on to criticize as well the cumbersome and treacherous procedures that death penalty lawyers must master and navigate to try to ensure that capital punishment is carried out, if at all, reliably and fairly. In truth, it is not, as seen in the scores of death sentences reversed over the past two decades and in the skewed racial and ethnic demographics of death rows nationwide.
      Judges, Gorsuch wrote in closing, should ensure that death penalty challenges are "resolved fairly and expeditiously" and should "police carefully against attempts to use such challenges as tools to interpose unjustified delay." Justice Sonia Sotomayor aptly chided Gorsuch for adding "inessential" dicta to an already contentious decision.
      "There are higher values than ensuring that executions run on time," Sotomayor wrote. "If a death sentence or the manner in which it is carried out violates the Constitution, that stain can never come out. Our jurisprudence must remain one of vigilance and care, not one of dismissiveness."