Law & the Courts

The SOGI Saga Sags

As we wrestle with the question whether in 1964 (or even today) “sex” meant “gender identity” and/or “sexual orientation” — shouldn’t this be a short wrestling match? — I thought I would recycle a couple of Bench Memos posts of mine from when the same-sex marriage issue was pending before the Supreme Court. Just because you have to consider a person’s sex in making a decision, doesn’t mean that the decision will discriminate against that person because of sex. The analogy I’ll use is that we have to consider a person’s date of birth in deciding whether to throw them a birthday party, but that doesn’t mean that deciding not to throw them a birthday party is age discrimination — even though we also have to consider the person’s date of birth in deciding whether to engage in age discrimination. Likewise, we have to consider people’s sex in deciding whether their being attracted to men makes them gay, say, or whether they are transgender — but that doesn’t mean that we are therefore discriminating against them because they are male or female. We just need that datum to make another determination which is ultimately not about their sex, but about their sexual orientation or gender identity.

Law & the Courts

‘Biology Is Not Bigotry’

Here’s an excerpt from the excellent amicus brief submitted on behalf of Ryan T. Anderson in the Title VII SOGI cases:

Respondents and their amici contend that any policy that adverts to sex must discriminate because of sex. Only in this way are they able to give Title VII a scope that for decades no one would have ascribed to it. And in the process, they are forced to rely on confused theories of discrimination and of sex. Over and over, Respondents and their amici offer crucially flawed analogies, comparators, and analyses that effectively read the words “discrimination,” “disadvantageous,” and “comparable terms” out of the law altogether. This distorted reading leads to absurd and costly results that cut against the balance Congress struck in crafting Title VII.…

As this Court explained in Oncale v. Sundowner Offshore Services, Inc., Title VII requires “neither asexuality nor androgyny.” It requires equality and neutrality. It forbids double standards for men and women—policies that disfavor at least some individuals of one sex compared to similarly situated members of the other. So, as the Court unanimously held in Oncale, quoting Justice Ginsburg: “The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” This Ginsburg reading, embraced by the whole Court, remains valid. And yet Respondents and their amici explicitly reject it, as their position requires. This Court should hold fast to the Ginsburg reading—on which Title VII violations consist of double standards for women and men.…

Title VII forbids discrimination—in a word, unfairness—because of sex. It excludes, not just any sex-conscious standards, but double standards. Yet Respondents and their amici urge the Court to adopt a theory of sex discrimination that would rule out (as discriminatory) any policies that advert to sex, rather than only those sex-related policies that result in “disparate treatment of men and women,” where members of one sex suffer under “disadvantageous terms” that the other does not. That would lead to asexuality and androgyny.

Adopting Respondents’ theory … would require either the elimination of all sex-specific programs and facilities or allow access based on an individual’s subjective identity rather than their objective biology. That Respondents and their amici are evasive about which of these outcomes is required by their theory is telling. Making its implications explicit would prove decisively that their reading is unsound.

It would also highlight the severe consequences for privacy, safety, and equality. Employers would be prevented from protecting their employees’ privacy and would be exposed to ruinous liability. They would have to cover objectionable medical treatments. Physicians would have to perform them against conscience. And the consequences would not be limited to the employment context. If this new theory of sex and of discrimination is imposed on Title VII, then why not Title IX? A Respondent-friendly reading of sex discrimination would spell the end of girl’s and women’s athletics, along with private facilities at school.…

Biology is not bigotry; this Court should not conclude otherwise. Only Congress, not this Court, can craft policy to address sexual orientation and gender identity—concepts distinct from sex—with attention to all the competing considerations.

Law & the Courts

Independent Women’s Forum: Girls’ and Women’s Sports in Jeopardy

I’ll also highlight some noteworthy amicus briefs in the Title VII SOGI cases. Here’s an excerpt from the brief filed on behalf of the Independent Women’s Forum and 1,013 athletes and parents:

Although this case involves the workplace, not sports, courts have long held that Title IX’s prohibition against sex discrimination in education should be interpreted in pari materia with Title VII’s similar prohibition against sex discrimination in employment. Any judicial expansion of Title VII to include gender identity and/or transgender status will have the unintended consequence of making transgender status a protected category under Title IX, which covers school athletic programs.

In the short term, a ruling in favor of Respondents will reduce the number of athletic opportunities for biological women and girls. In the long run, it will undermine the legal justification for maintaining any sex-specific athletic teams and may result in the elimination of women’s sports altogether.

Law & the Courts

Another Pseudo-Textualist Amicus Brief in Title VII SOGI Cases

The amicus brief filed in the Title VII SOGI cases in the Supreme Court on behalf of Kenneth B. Mehlman and some three dozen other “Republicans, former Republicans, and political conservatives” of varying degrees of prominence suffers from the same defects as the amicus brief for some former SGs:

1. The brief asserts that “it is clear that discrimination on the basis of sexual orientation or transgender status necessarily constitutes action taken because of the individual’s sex,” (emphasis in original), for it “is impossible to cognize a person’s sexual orientation without first noting whether the person is male or female (or possesses the physical or behavioral characteristics usually associated with being male or female).”

But the brief fails to recognize that its supposed test for unlawful discrimination on the basis of sex would also doom practices that have long been accepted under Title VII, such as sex-specific restrooms, sex-specific shower facilities, and dress codes.

Assume a situation in which an employer has sex-specific restrooms and showers and a male employee (not someone who identifies as transgender) is disciplined or discharged for using the women’s restroom or showers. It is impossible to apply the employer’s policy “without first noting whether the person is male or female.” Under the simplistic logic of the amicus brief, that would mean that the employer’s policy violated Title VII. But Title VII has never been so understood, and the brief doesn’t even acknowledge the problem, much less try to address it.

2. Relatedly, the supposedly textualist brief never examines what “discriminate … because of … sex” means.

As Fifth Circuit judge James C. Ho has crisply explained, the traditional understanding of Title VII’s ban on discrimination “because of … sex” is that it adopts an anti-favoritism theory (employers can’t favor men over women, or vice versa) rather than the blindness theory (employers must be entirely blind to a person’s sex) that the brief imagines. But, again, the brief doesn’t recognize the issue, much less engage it.

3. From the fact that Title VII prohibits discrimination against individuals, the brief leaps to the mistaken conclusion that the plaintiff employee does not have an obligation to show that the employer disadvantages the plaintiff’s sex as a group. The brief somehow never acknowledges this passage from the Court’s unanimous opinion in Oncale v. Sundowner Offshore Services (1998):

“The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” [Quoting concurring opinion of Justice Ginsburg in Harris v. Forklift Systems (1993).]

Again, discrimination on the basis of sexual orientation or gender identity does not expose “members of one sex … to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Oncale’s reading of Title VII thus defeats the brief’s claim.

Law & the Courts

Making the Term ‘Sex’ Subjective Threatens American Businesses

A bathroom sign welcomes both genders in Durham, N.C., May 3, 2016. (Jonathan Drake/Reuters)

As CEO of the C12 Group, which serves more than 1,500 businesses across the nation, I have the privilege of working alongside hundreds of female business owners. Many of these women run certified “Women Owned Small Businesses” and are eligible for specialized government contracts meant to enable female entrepreneurs to compete in the marketplace.

But if “sex” is arbitrarily redefined by judges or government agencies to mean “gender identity,” these opportunities will vanish for the very women they were designed to benefit — marking a major setback for women in our country.

No matter what your beliefs, as a business owner, you need to understand that the vogue “gender identity” legislative wave is a threat to your company. The mandates that come with “gender identity” laws mean proactively checking with each and every employee on a moment to moment basis to find out their preferred gender and respond accordingly. It means being liable to crushing lawsuits with every employee and customer interaction. It means walking on eggshells and hoping your business isn’t next in line.

Perhaps nowhere is this conflict between “sex” and “gender identity” more apparent than in R.G. & G.R. Harris Funeral Homes v. Equal Opportunity Employment Commission — which will be argued before the U.S. Supreme Court this fall.

In that case, a male funeral home director who had worked at the funeral home for six years announced his intent to dress as a woman during work hours, even while dealing with grieving families. Though the funeral home owner’s decision to decline his employee’s request was squarely within the parameters of the company’s employee policy, the law, and the EEOC’s own compliance manual, he’s been forced to appeal all the way to the Supreme Court to avoid a crushing blow to his 100-year-old family business in a lawsuit over “sex” and “gender identity.”

It isn’t just Harris Funeral Homes that’s threatened in this case. That’s why the C12 Group filed an amicus brief supporting the funeral home, spelling out just a few of the seemingly endless negative ways a ruling against Harris will affect businesses all over the country.

The next time you go to your doctor’s office, for example, take a look at the medical intake form. One question I can guarantee you’ll see — along with name, age, and weight —is a two-choice checkbox called “Sex.”

“Sex” is the most important biometric data point. Whether the patient is male or female tells a medical professional what to look for in terms of hormone levels, cholesterol, red blood cell count, and more.

But step out of the medical context, and you’ll find that, to many in today’s self-defining culture, the idea that “sex” is a binary and fixed fact is narrow-minded at best, hateful and bigoted at worst. In politics, media, and academia, “gender identity” is often treated as the only relevant category, where the individual defines with a seemingly endless list of genders he or she (or “they” or “xe” or “xhe” or “zhe”) “identifies as” on any particular day.

But while politicians and government appointees tend to think in terms of the next election, the reality on the ground is that redefining “sex” to mean “gender identity” creates massive problems — not the least of which is the damage that such a seismic change would cause to businesses and medical professionals.

It was against this backdrop that a friend of mine — the CEO of a health-care company — asked me a simple question that’s all but impossible to answer: “What does all this mean for the practice of medicine?”

Put yourself in my friend’s situation. If “sex” is redefined to mean “gender identity,” he’s thrown into a world where the most basic medical diagnostic question is considered discrimination. If he asks the patient their biological sex, he could be breaking the law and putting his entire life’s work in jeopardy. It’s a lose-lose situation.

Worse, he could stay on the “safe side” and just go with “gender identity.” That may keep him on the right side of these proposed or reinterpreted laws, but it also opens the door for crushing malpractice suits and potentially fatal situations. That’s not hypothetical. A recent report in The New England Journal of Medicine tells the story of a baby dying in childbirth because the hospital staff was under the impression they were treating a man — not a pregnant woman — based on the patient’s stated gender.

If the rush to redefine “sex” to mean “gender identity” can’t even slow down long enough to respect the right of a funeral home to act in the best interests of grieving families, the question business owners like my friend in the health-care industry are left asking is:

“Who’s next?”

Law & the Courts

This Day in Liberal Judicial Activism—September 11

The U.S. Supreme Court in Washington, D.C., June 11, 2018 (Erin Schaff/Reuters)

2017—In a New York Times interview just days after his retirement from the Seventh Circuit, Reagan appointee Richard A. Posner provides a candid description of his lawless “pragmatism”:

“I pay very little attention to legal rules, statutes, constitutional provisions,” Judge Posner said. “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”

The next thing, he said, was to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. “And the answer is that’s actually rarely the case,” he said. “When you have a Supreme Court case or something similar, they’re often extremely easy to get around.”

Law & the Courts

Steven Menashi Hearing Tomorrow

Tomorrow, Steven Menashi, President Trump’s nominee to U.S. Court of Appeals for the Second Circuit, will go before the Senate Judiciary Committee for his nominations hearing. Menashi has already been the target of misleading and anti-Semitic smears, which I have written about here on Bench Memos. The following post provides a snapshot of Mr. Menashi’s vast experience and qualifications to be a federal appellate court judge:

Who Is Steven Menashi?

Law & the Courts

Who is Steven Menashi?

Steven Menashi is President Trump’s nominee to the U.S. Court of Appeals for the Second Circuit from New York.

Age:  40

Current Position:  Associate White House Counsel and Special Assistant to the President 

Education:

  • B.A., Dartmouth College, magna cum laude(2001)
  • J.D., Stanford Law School, Order of the Coif (2008); Senior Articles Editor, Stanford Law Review

Judicial Clerkships:

  • Douglas H. Ginsburg, U.S. Court of Appeals for the D.C. Circuit (2008-2009)
  • Samuel A. Alito, U.S. Supreme Court (2010-2011)

Professional Experience:

  • 2018-Present: Associate White House Counsel and Special Assistant to the President
  • 2018: Principal Deputy General Counsel, U.S. Department of Education (Washington, DC)
  • 2017-2018: Acting General Counsel, U.S. Department of Education (Washington, DC)
  • 2016-2019: Assistant Professor of Law, Antonin Scalia Law School, George Mason University (Arlington, VA) (on leave 2017-2019)
  • 2011-2017: Associate (2011-2013), Of Counsel (2013-2015; 2016-2017), and Partner (2015-2016), Kirkland & Ellis LLP (New York, NY)

Career Notes:

  • Menashi’s work at Kirkland & Ellis focused on civil and regulatory litigation. In academia, he similarly taught courses on administrative law and civil procedure.
  • While in private practice, Menashi also was a research fellow at the New York University School of Law and the Opperman Institute for Judicial Administration (2013-2016).
  • Between 2001 and 2004, Menashi was on the staff of Stanford University’s Hoover Institution, where he worked as an editor of the Policy Review and (between 2002 and 2004) was a Public Affairs Fellow.
  • In 2018, Menashi served on the board of the Food Allergy Fund, a charitable organization that supports research focused on the underlying causes and treatments of food allergies.

Honors and Awards:

  • At Stanford, Menashi received the Steven M. Block Civil Liberties Award and the Carl Mason Franklin Award in International Law, and he won the Kirkwood Moot Court Competition (2008). His scholarship has been recognized through fellowships with the Institute for Humane Studies (2007), the Johns Hopkins University School of Advanced International Studies (2004), and the Claremont Institute (2002). In 2000 and 2001, the Center for Print and Broadcast Media gave him the Lowry Outstanding Editor Award.
Law & the Courts

Mystifying Amicus Brief for Some Former SGs in Title VII SOGI Cases

As you’d expect, the briefs and amicus briefs on behalf of the employees in the Title VII SOGI cases in the Supreme Court are replete with pseudo-textualist claims that Title VII’s ban on employment practices that “discriminate … because of … sex” prohibits discrimination on the basis of sexual orientation or gender identity. The Department of Justice’s briefs comprehensively answer these claims. But I hope to find time to address some of the amicus briefs directly.

Let’s start with the amicus brief filed by Laurence Tribe and Joshua Matz on behalf of two former Solicitors General (Theodore B. Olson and Seth Waxman) and two former acting Solicitor Generals (Walter Dellinger and Neal Katyal).*

1. The brief’s core claim that “an employer who discriminates based on transgender status necessarily accounts for sex at every single step of his or her reasoning” rests on the assumption that any employment practice that can be applied only by identifying an employee’s sex amounts to discrimination on the basis of sex under Title VII. But that assumption is contradicted by the longstanding acceptance of sex-specific restrooms, sex-specific locker rooms and shower facilities, and dress codes (which all require taking account of an employee’s sex).

Amazingly, the brief does not even acknowledge this contradiction, much less try to explain it away.

2. Relatedly, while the brief undertakes to parse the meaning of the terms “because of,” “such individual’s,” and “sex” in Title VII, it never examines what the critical word “discriminate” means in conjunction with those other terms. It instead simply assumes, wrongly, that any distinction on the basis of sex amounts to unlawful discrimination on the basis of sex. So much for serious textualist analysis.

3. The brief wrongly asserts that the Court in Oncale v. Sundowner Offshore Services (1998) “held that Title VII forbids ‘male-on-male sexual harassment in the workplace.’” In fact, the Court held only that there is no “categorical rule excluding same-sex harassment claims from the coverage of Title VII.” In other words, male-on-male sexual harassment in the workplace does not always violate Title VII; it does so only if it also “meets the statutory requirements.”

As to what those “statutory requirements” are, the Court explained:

We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations. “The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” [Quoting concurring opinion of Justice Ginsburg in Harris v. Forklift Systems (1993) (underlining added).]

Discrimination on the basis of sexual orientation or gender identity does not expose “members of one sex … to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Oncale’s reading of Title VII thus defeats, rather than supports, the brief’s claim.

* I initially messed up on the listing of former SGs and acting SGs. For some reason, the brief is also submitted on behalf of a former associate White House counsel, Karen Dunn.

Law & the Courts

ABA Awards CA2 Nominee Menashi Highest Rating of ‘Well Qualified’

Well, let me give credit where credit is due.

It’s rare, if not unprecedented, that the ABA’s judicial-evaluations committee exceeds my expectations. But it has done so in awarding Second Circuit nominee Steven Menashi its highest rating of “well qualified.”*

As the ABA committee’s Backgrounder explains, in order to receive a “well qualified” rating, a nominee “must be at the top of the legal profession in his or her legal community; have outstanding legal ability, breadth of experience, and the highest reputation for integrity; and demonstrate the capacity for sound judicial temperament.” Given the smears that Menashi has been subjected to, I will highlight that in evaluating a nominee’s judicial temperament, the committee considers the nominee’s “freedom from bias and commitment to equal justice under the law.” Let’s hope that the ABA’s rating puts an end to the smears.

Menashi’s confirmation hearing takes place tomorrow.

* A majority of the committee rated Menashi “well qualified,” while a minority rated him “qualified.” As the committee’s letter states, “The majority rating represents the Standing Committee’s official rating.”

Law & the Courts

Justice Gorsuch’s New Book

Tomorrow is the official release date of Justice Gorsuch’s new book, A Republic, If You Can Keep It, a collection of the Justice’s articles, speeches, and opinions. I’ve bounced around the book over the past couple of weeks—I very much enjoyed the excellent piece on “Originalism and the Constitution” I just read—and highly recommend it both as an interesting account of Justice Gorsuch’s understanding of the Constitution and the judicial role and a window into the appealing character and personality of Justice Scalia’s successor.

Disclosure: The book has the same publisher (Crown Forum) and editor as the two books of Justice Scalia’s works that I’ve already co-edited—Scalia Speaks: Reflections on Law, Faith, and Life Well Lived and On Faith: Lessons from an American Believer—as well as of the hitherto-undisclosed third Scalia volume that is coming next.

Law & the Courts

Judicial Nominations Update

Today the Senate returns from its August recess, and is expected to promptly return to the work of confirming President Trump’s judicial nominees.

First up will be six pending district court nominees currently awaiting confirmation votes. Before the recess, Senate majority leader Mitch McConnell filed cloture motions to end debate on their nomination; confirmation votes for the six are expected soon after Senate business resumes.

Over the recess, President Trump announced the nomination of seventeen new judicial nominees, including three circuit court nominees — Steven Menashi and William Nardini to the Second Circuit, and Danielle Hunsaker to the Ninth Circuit.  (Because these nominations have not been formally received by the Senate yet, they are not reflected in the figures below.)

On Wednesday, the Senate Judiciary Committee will be holding a nominations hearing. As of this writing, the slate has not been noticed.

Here is a full update on the status of President Trump’s federal judicial nominations:

 Current and known future vacancies:  124

Courts of Appeals:  5

District/Specialty Courts*: 119

Pending nominees for current and known future vacancies: 40

Courts of Appeals: 1

District/Specialty Courts*: 39

* Includes the Court of Federal Claims and the International Trade Court

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Original Nomination

Date

Days Since Original Nomination Both Blue Slips Returned? Judiciary Committee Hearing Date
None

 Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes

Nominee (Circuit) Original Nomination Date Days Since Original Nomination Judiciary Committee Hearing Date
Halil Suleyman “Sul” Ozerden 6/24/19 77 7/17/19

 Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Since Original Nomination Date Reported to Senate Floor
None

 Nominees Awaiting Floor Votes: 26

Courts of Appeals: 1

District/Specialty Courts: 25

Days Pending

  • # of pending nominees originally nominated > 500 days ago: 1
  • # of pending nominees originally nominated > 400 days ago: 10
  • # of pending nominees originally nominated > 300 days ago: 17

Nominees Confirmed by the Senate during the 116th Congress: 63

Supreme Court: 0

Courts of Appeals: 13

District/Specialty Courts: 50

Nominees Confirmed by the Senate since Inauguration Day: 148

Supreme Court: 2

Courts of Appeals: 43

District/Specialty Courts: 103

Law & the Courts

DOJ Briefs in Title VII SOGI Cases

On October 8, the Supreme Court will hear oral argument in three cases concerning the scope of Title VII’s ban on employment practices that “discriminate” on the basis of “sex.” Two consolidated cases, Altitude Express Inc. v. Zarda and Bostock v. Clayton County, present the question whether Title VII prohibits discrimination on the basis of sexual orientation, and the third, R.G & G.R. Harris Funeral Homes v. EEOC, asks whether it bars discrimination on the basis of gender identity.

I’m pleased to see that the Department of Justice has filed outstanding briefs in both cases. Here is its brief on behalf of the EEOC (opposing and reversing the position the EEOC took below) in Harris Funeral Homes. And here is its amicus brief in support of the employers in Zarda and Bostock.

As you’d expect, the core argument that DOJ presents in the two briefs is the same. I am going to outline here DOJ’s argument in Harris Funeral Homes:

1. Title VII does not prohibit discrimination against transgender persons based on their transgender status.

When Title VII was enacted in 1964, the ordinary public meaning of “sex” was biological sex, not transgender status. (Brief 16-20.) Congress’s actions in the ensuing 55 years forcefully confirm that “sex” in Title VII does not encompass transgender status. (Brief 22-27.)

2. Discrimination based on transgender status does not inherently entail discrimination because of sex.

a. To discriminate against a member of a protected class means treating an individual in the class less favorably than a similarly situated individual outside the class. An employer that treats individuals differently who are not similarly situated does not discriminated based on a prohibited ground. (Brief 31-33.)

An employer that treats transgender individuals less favorably based on their transgender status does not expose members of one sex to disadvantageous treatment to which members of the other sex are not exposed. So long as the employer treats transgender individuals of both sexes equally, it has not discriminated against either males or females. If an employer discriminates against an individual because that individual is transgender, the less favorable treatment is not because of that individual’s sex. (Brief 33-34.)

Harris Homes treated Stephens (a biological male) less favorably than male employees who dressed as males at work. But there is no evidence in the record that Harris Homes would have treated more favorably a female employee who intended to dress as a member of the opposite sex, and there is plenty of evidence to the contrary. (Brief 34-35.)

b. The court below was wrong to hold that discrimination because of transgender status necessarily entails discrimination on the basis of sex because one cannot treat a transgender person differently “without considering that employee’s biological sex.”

It is simply not the case that Title VII bars any employment practice that can be applied only by identifying an employee’s sex. Many commonplace practices that distinguish between the sexes do not violate Title VII because they account for real physiological differences between the sexes without treating either sex less favorably. Sex-specific restrooms, for example, and dress codes. [I’d add in sex-specific locker rooms in corporate gyms.] (Brief 35-38.)

[DOJ also cites with approval the Fourth Circuit’s allowance of “gender-normed” fitness standards by the FBI. I’m very doubtful that the Fourth Circuit’s opinion in Bauer v. Lynch is sound, as I think that the gender-normed fitness standards clearly treat men less favorably. But those on the Left who think that the opinion is sound and who think that Title VII prohibits discrimination based on transgender status have some additional explaining to do.]

3. Discrimination against transgender persons does not constitute sex stereotyping prohibited by Title VII.

Sex stereotyping by itself is not a Title VII violation. Price Waterhouse v. Hopkins (1989) merely recognized that a plaintiff can use evidence that an employer engaged in sex stereotyping to show that the employer discriminated because of sex. But it did not recognize sex stereotyping as a freestanding category of Title VII liability. A plaintiff must still show that an employer treated members of one sex less favorably than similarly situated members of the opposite sex. Otherwise, countless sex-specific policies—e.g., sex-specific restrooms, or a requirement that men wear neckties—would be susceptible to challenge as predicated on sex stereotypes. (Like any other plaintiff, a transgender person may use evidence of sex stereotyping in proving discrimination on the basis of sex.) (Brief 45-50.)

Law & the Courts

This Day in Liberal Judicial Activism—September 9

(Photo Illustration: NRO)

1993—Missouri 17-year-old Christopher Simmons plans a brutal murder and assures his friends that they can “get away with it” because they are minors. In the middle of the night, Simmons and a friend break into the home of Shirley Crook, awaken her, cover her eyes and mouth with duct tape, bind her hands, put her in her minivan, drive to a state park, walk her to a railroad trestle spanning the Meramec river, tie her hands and feet together with electrical wire, wrap her whole face in duct tape, and throw her from the bridge. Exactly as Simmons plans, Mrs. Crook drowns an unspeakably cruel death in the waters below.

Simmons confesses to the murder. At the death-penalty phase of his trial, the judge instructs the jurors that they can consider Simmons’s age as a mitigating factor, and the defense relies heavily on that factor. The jury recommends, and the trial judge imposes, the death penalty.

A dozen years after Simmons’s summary execution of Mrs. Crook, the Supreme Court, by a vote of 5 to 4, relies on “international opinion” to overturn its own precedent and to rule (in Roper v. Simmons) that execution of offenders who were 17 at the time of their offense violates the Eighth Amendment. (See This Day for Mar. 1.) In dissent, Justice Scalia observes that the majority’s “startling conclusion” that “juries cannot be trusted with the delicate task of weighing a defendant’s youth along with the other mitigating and aggravating factors of his crime … undermines the very foundations of our capital sentencing system, which entrusts juries with ‘mak[ing] the difficult and uniquely human judgments that defy codification and that ‘buil[d] discretion, equity, and flexibility into a legal system.’”

2010—In California, federal district judge Virginia A. Phillips rules (in Log Cabin Republicans v. United States) that the Don’t Ask, Don’t Tell law governing homosexuals in the military violates substantive due process and First Amendment speech rights and that the plaintiff organization is entitled to a permanent injunction against enforcement of the law.

The Obama administration’s sabotage of Don’t Ask, Don’t Tell litigation—including then-Solicitor General Elena Kagan’s irresponsible failure to seek review of a rogue Ninth Circuit ruling that applied a higher level of scrutiny to Don’t Ask, Don’t Tell—helped set the stage for Phillips’s ruling. Indeed, Phillips states several times in her opinion (in slightly different formulations) that the Department of Justice “called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act.” But Phillips compounds the Obama administration’s malfeasance by misstating and misapplying the relevant standard for facial challenges.

Law & the Courts

This Day in Liberal Judicial Activism—September 8

Robert Bork at his Senate confirmation hearings in 1987. (CNP/Getty)

1987—While ten members of the American Bar Association’s judicial-evaluations committee sensibly give Supreme Court nominee Robert H. Bork the highest rating of “well qualified,” four members indulge their ideological biases and rate him “not qualified.”

The four members hide behind the cloak of anonymity, but years later they will be reported to be Jerome J. Shestack, Joan M. Hall, Samuel Williams, and John Lane.

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