HLS faculty weigh in on Supreme Court 2019-2020 term decisions

The front of the U.S. Supreme Court, and reflection in a pool of water, in Washington, DC, at dusk.

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Roberts drifts away from conservative bloc, angering Republicans and exciting the left

Supreme Court Chief Justice John Roberts’ role as the court’s new swing vote has become abundantly apparent in recent weeks, as he has been the deciding justice in several high-profile 5-4 decisions in which he sided with the court’s liberal bloc — providing hope for Democrats and angering Republicans. The jurist kept court watchers on their toes yet again this week, siding with the conservatives in a tight decision that delivered a win for the school choice movement on Tuesday. But in Monday’s decision in June Medical Services v. Russo, Roberts sided with the liberal members to rule against a Louisiana law restricting who can perform abortions, upholding precedent from a similar case in 2016 in which he was on the other side. This followed his vote in rejecting the Trump administration’s attempt to rescind DACA and his vote in a 6-3 decision that prohibited employment discrimination based on sexual orientation and gender identity…Well-known liberal law professor Laurence Tribe, who taught Roberts at Harvard, expressed pride for his former student after Monday’s decision. “Adding the Louisiana abortion decision to the DACA decision and the LGBTQ decision makes me especially proud of my former constitutional law student, Chief Justice John Roberts,” Tribe tweeted. Roberts’ history of separating himself from the court’s conservative contingent in key cases goes back years. In 2012, by siding with the liberal wing and reinterpreting an individual mandate as a tax, he allowed ObamaCare to be found constitutional. Additionally last year he joined with liberals again in shutting down the Trump administration’s efforts to add a citizenship question to the census.

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CFPB Ruling Shows John Roberts Doesn’t Rock the Boat

An article by Noah FeldmanYou might think this is a bad historical moment to give the president more power to boss around his subordinates. Chief Justice John Roberts disagrees. In a decision that counts as a modest win for the idea of a “unitary executive,” he has written an opinion for the Supreme Court holding that the president must have the power to fire the director of the Consumer Finance Protection Bureau for any reason. The court didn’t strike down the CFPB as a whole, thankfully. The bureau can stay in place. And the court didn’t strike down the organizational form of other independent agencies, like the FTC or FCC, which are run by multi-member, bipartisan commissioners. Roberts limited the decision to the CFPB. Roberts’s moderation here actually echoed his moderation in the Louisiana abortion case handed down today. The CFPB ruling was a moderate decision that conservatives will like, while the abortion decision is a moderate decision that liberals will like. But both reflected Roberts’s commitment to cautious conservatism in the vein of Edmund Burke. He does not favor rapid change — whatever the court’s other conservatives may want. In practice, so long as the CFPB is run by a single director, it can’t be independent in the sense of having its leadership insulated from the president. Either Congress will have to re-form the CFPB by creating a multi-member commission, or else the CFPB will cease to be independent. The stakes of the decision, Seila Law v. CFPB, are particularly high because the case is essentially about whether and how the Constitution allows independent agencies to be shielded from presidential control. That matters when you have a president who has set out to politicize nearly every aspect of decision making, including in areas, like criminal justice, where there is a robust tradition of independence.

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Supreme Court Puts Independent Agencies at Risk

An article by Cass Sunstein: On rare occasions, the Supreme Court answers the most fundamental questions, going to the very heart of our constitutional system. In striking down the independence of the Consumer Financial Protection Bureau, the court today did exactly that. Since the founding itself — and with mounting intensity over the 40 years — the United States has been divided over two visions of the Constitution. The first insists that we have a “strongly unitary executive,” which means that the president must be in charge of all those who implement federal law. For those who believe in a strongly unitary executive, all departments, all agencies and all administrators work under one person: the commander in chief. Congress lacks the power to create “independent” agencies, headed by people whom the president cannot fire, and who are not subject to his will. According to the second vision, we have a “weakly unitary executive,” which means that Congress has the authority to restrict the president’s power to control some officials who implement federal law. If Congress wants to create independent regulators, such as the Federal Trade Commission, the Federal Communications Commission and the Consumer Financial Protection Bureau, it’s perfectly entitled to do that. Sure, the president must be allowed to carry out his constitutional functions, meaning that he has to be allowed to control the secretary of State and the secretary of Defense (and perhaps the attorney general). But for those who believe in a weakly unitary executive, Congress is allowed to make some regulators independent of the president.

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John Roberts Was Already Chief Justice. But Now It’s His Court.

In a series of stunning decisions over the past two weeks, Chief Justice John G. Roberts Jr. has voted to expand L.G.B.T.Q. rights, protect the young immigrants known as Dreamers and strike down a Louisiana abortion law. In all three decisions, he voted with the court’s four-member liberal wing. On Tuesday, he joined his usual conservative allies in a 5-to-4 ruling that bolstered religious schools. The decisions may be hard to reconcile as a matter of brute politics. But they underscored the larger truth about Chief Justice Roberts: 15 years into his tenure, he now wields a level of influence that has sent experts hunting for historical comparisons…Richard J. Lazarus, a law professor at Harvard, said Monday’s abortion decision vindicated Chief Justice Roberts’s statements. “The chief is sending a broader message to both parties, and this time in this case it is the Republicans who take the hit,” Professor Lazarus said. “But the message would be the same if it were the Democrats and their favored position had lost.” The message was this, Professor Lazarus said: “You cannot expect us to behave like partisan legislators.” The abortion case concerned a Louisiana law that was essentially identical to one from Texas that the court had struck down just four years ago, before Mr. Trump appointed two new justices. In dissent in 2016, Chief Justice Roberts had voted to uphold the Texas law. Professor Lazarus said he suspected the chief justice was offended by the idea that a change in the composition of the court should warrant a different outcome in what was, at bottom, the identical case.

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With abortion ruling, Roberts reasserts his role and Supreme Court’s independence

Every Supreme Court decision seems to confirm Chief Justice John G. Roberts Jr.’s pivotal role at the center of the court, and Monday’s ruling on abortion showed that restrictions on a woman’s right to the procedure for now will go only as far as the chief justice allows. In a remarkable stretch of decisions over the past two weeks, Roberts has dismayed conservatives and the Trump administration by finding that federal anti-discrimination law protects gay, bisexual and transgender workers and stopping the president from ending the federal program that protects undocumented immigrants brought here as children…Roberts’s admirers speculate he was turned off by the attempt to have the court’s 2016 decision overturned because the court’s membership had changed with Trump’s two appointments. Too soon, said Richard Lazarus, a Harvard law professor who has known Roberts since law school days and who has taught summer courses with the chief justice. “The chief’s clear message is that is not how justices do their work,” Lazarus said in an email. “It is a shot across the bow at presidential candidates who campaign with lists of nominees based on the assumption that, if confirmed, they will of course necessarily vote based on the preferences of the majority who supported that candidate.”

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As SCOTUS Strikes Down A Restrictive Abortion Law, Looking To The Future Of Roe v. Wade

The Supreme Court on Monday ruled on a major abortion case to start the week. The court struck down a Louisiana law that required doctors performing abortions have admitting privileges to nearby hospitals — the effects of which could have left the state with a single abortion clinic. We discuss with Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, and WBUR’s legal analyst.

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Supreme Court may have undermined its Guantánamo decision guaranteeing rights to noncitizens

Each year, the United States deports over 100,000 noncitizens through “expedited removal,” a fast-tracked deportation process. In creating the system, Congress intentionally limited procedural protections for certain immigrants, allowing judges reviewing these removal orders to consider only three narrow questions: whether the immigrant is a noncitizen, has been ordered removed, or is a lawful permanent resident, refugee or asylum seeker. Vijayakumar Thuraissigiam, a Sri Lankan national who sought asylum in the United States, challenged that limit, arguing that it was an unconstitutional barrier to habeas corpus, a right that allows a judge to review whether someone is legally detained. On Thursday, the Supreme Court disagreed, issuing a sweeping ruling in Department of Homeland Security v. ThuraissigiamBoumediene found that the Constitution guarantees habeas corpus rights even to detainees the Bush administration held as “enemy combatants.” That was true even though the detainees weren’t citizens. In fact, as legal scholar Gerald Neuman put it, Boumediene “confirmed and held that the Suspension Clause constitutionally guarantees habeas corpus to noncitizens” (emphasis original). The Thuraissigiam majority opinion, however, characterizes Boumediene as “forming ‘no certain conclusions’ ” on whether habeas rights extend to “alien[s] who lack … any allegiance to the country.”

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Roberts Finally Makes His Position on Abortion Clear

An article by Noah Feldman: Chief Justice John Roberts has drawn his line in the sand.  In what may well come to be his most famous opinion ever, a solo concurrence in today’s Louisiana abortion case, Roberts voted to uphold Casey v. Planned Parenthood, the 1992 decision in which Justices Anthony Kennedy, Sandra Day O’Connor, and David Souter declined to overturn Roe v. Wade. The basis was stare decisis — the doctrine of precedent which, he said, instructs us “to treat like cases alike” rather than changing the rules and reversing course. Roberts made it clear that he reads the Casey decision very narrowly, to allow restrictions on abortion that don’t impose an “undue burden” on reproductive freedom. He signaled that he is still open to upholding laws that chip away at the existing abortion rights framework, which has been his approach in the past. Roberts hasn’t had some transformative epiphany that made him into a staunch defender of abortion rights. But crucially, Roberts also made it as clear as he could that, so long as he is the swing vote on the court, he isn’t open to overturning Roe or Casey. He doesn’t want the Roberts Court to be remembered as a reactionary body that reversed nearly 50 years of settled law on abortion rights. This is a massive setback for legal conservatives. It means that to overturn Roe and Casey, they need President Donald Trump to be re-elected and to get at least one more conservative on the court to replace a liberal justice.

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Could the Supreme Court’s Landmark L.G.B.T.-Rights Decision Help Lead to the Dismantling of Affirmative Action?

An article by Jeannie Suk GersenIn 1946, William K. Wimsatt and Monroe C. Beardsley argued, in their classic essay, “The Intentional Fallacy,” that critics interpreting a literary work should cast aside pursuit of the author’s intent. “The poem belongs to the public,” they wrote, because “it is embodied in language, the peculiar possession of the public.” The New Criticism, a movement that dominated the academic study of literature in mid-century, asserted that only close analysis of the words and structure of the text—not external knowledge about the author, politics, morality, or a reader’s feelings—was the key to understanding its meaning. Salvatore Eugene Scalia, a professor of Italian literature at Brooklyn College, was an adherent of this theory. He also advocated for “literalness” in reading and translation, to avoid “yielding to the temptation” to follow one’s own language’s conventions in interpreting the words of the text. The New Criticism fell from prominence in the nineteen-eighties, but its impact became discernible in another field, through Professor Scalia’s only child, who was appointed to the Supreme Court in 1986, the same year that the elder Scalia died. Justice Antonin Scalia became the country’s most important expositor of textualism, the influential method of legal interpretation wherein “the text is the law, and it is the text that must be observed,” regardless of what lawmakers may have intended in passing the law. Since the nineteen-eighties, textualism has been favored by legal conservatives—but, in more recent decades, its focus on the words of a text has become influential with liberal judges, too. Last Monday, under the shadow of Antonin Scalia, who died in 2016, the current conservative Justices aired their strife over his textualist legacy in Bostock v. Clayton County, a landmark gay-and-transgender-rights case.

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Vaccines and New Treatments for COVID-19

A podcast by Noah Feldman: Dr. Saad Omer, the director of the Yale Institute for Global Health, brings us up to speed on the latest coronavirus research. Plus, Noah analyzes the Supreme Court DACA ruling.

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Supreme Court Ruling Weakens Asylum-Seekers’ Rights

An article by Noah FeldmanIn a sweeping decision with worrying implications for all immigrants, the Supreme Court has held that asylum-seekers rejected by immigration officials under an expedited system do not have the right to go to court to challenge their exclusion from the U.S. The majority opinion, by stalwart conservative Justice Samuel Alito, relied on originalist historical analysis to whittle down the meaning of habeas corpus to its most minimal protections. Along the way, Alito minimized and arguably misrepresented the most famous antislavery judicial decision of all time: Somerset v. Stewart, a 1772 case in which the greatest English common law judge of the era held that an enslaved Jamaican could not be forced to return to the West Indies but must be allowed to live freely in England. The specific law at issue in today’s case, Department of Homeland Security v. Thuraissigiam, is a provision of the wordily named Illegal Immigration Reform and Immigrant Responsibility act, known as IIRIRA. The law says that when a person enters the U.S., is detained at or near the border and seeks asylum, an immigration officer can interview the person and make a decision about whether the asylum-seeker has a “credible fear” of persecution that would qualify for asylum. If the answer is yes, the asylum-seeker gets a full hearing. If the answer is no, then the seeker’s case is reviewed by a supervisor and, if the asylum-seeker asks for it, by an immigration judge. This process is known as expedited review — and under the federal law, there is no way for the asylum-seeker to go to a regular federal court and seek review of the decision.

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The Supreme Court Extends A Life-Support Line For ‘Dreamers’

The Supreme Court has extended a life-support line to some 650,000 so-called “Dreamers” on Thursday, allowing them to remain safe from deportation. … TOTENBERG: At the end of the day, of course, the man of the hour is Chief Justice Roberts. Amid a politicized and polarized society, he repeatedly tries to portray the court as apolitical. He sees the growth of organizations on the hard right, like the Judicial Crisis Network, and on the hard left, like Demand Justice, each trying to stack the court with like-minded justices or to pack the court by expanding the number of justices. Harvard law professor Richard Lazarus has known the chief justice for decades. RICHARD LAZARUS: What these decisions this week underscore is we have a chief justice who is, plainly, working hard to try to demonstrate to the American people that the court, unlike the other two branches, is doing its job. He wants the American people to believe there’s a thing called law, and a justice’s job is to apply it.

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Supreme Court’s DACA Ruling Thwarts Administrative State

An op-ed by Cass Sunstein: The Supreme Court’s decision to strike down the Trump administration’s attempted rescission of the program known as Deferred Action for Childhood Arrivals is, above all, a tribute to the rule of law. It vindicates a defining idea in administrative law and a central check on the administrative state: Agencies must not behave arbitrarily. … The most important words in Chief Justice John Roberts’s opinion for the 5-4 majority are that “particularly when so much is at stake,” the U.S. “Government should turn square corners in dealing with the people.” The court’s conclusion was that the Trump administration failed to engage in reasoned decision-making. It did not turn square corners.

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John Roberts Is Done Trusting Donald Trump

An op-ed by Noah Feldman: Chief Justice John Roberts has come to liberals’ rescue again, this time providing the decisive fifth Supreme Court vote to strike down the Trump administration’s rescission of DACA, the Deferred Action for Childhood Arrivals program. It’s morally uplifting that dreamers now won’t have to live under threat of deportation; and it’s unlikely that President Donald Trump will be able to rescind DACA, with new justifications, before he leaves office. But don’t think that Roberts was motivated by any liberal sympathy for dreamers. The best explanation for his ruling is that Roberts is fed up with Donald Trump’s disrespect for the rule of law. Now he’s standing up for the role of the judicial branch of government in checking careless, lawless action by the executive.

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Supreme Court blocks Trump’s DACA shutdown

In a major setback for President Trump, the US Supreme Court blocked the administration’s attempt to end a federal program that protects 700,000 immigrants nationwide and more than 5,600 in Massachusetts from being deported. …“Given the tough questions asked at oral argument, it wasn’t at all clear which way the court would come out,” said Sabrineh Ardalan, director of the Harvard Immigration and Refugee Clinical program, which provides legal help to immigrants. “This is such a critically important victory and recognition that the Trump administration’s efforts to end DACA were unlawful.”

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Gay Rights and Trans Rights Are Indivisible. SCOTUS Just Showed Why.

An op-ed by Lecturer on Law Alex Chen ’15: Since the start of the modern LGBT movement in the 1960s, some members of the community have questioned the degree of common interest between lesbian, gay, and bisexual people on the one hand and transgender people on the other. Notwithstanding similar experiences of discrimination and a shared history of activism, members of both communities have sometimes viewed one another with mutual suspicion. LGB people, protective of hard-won legal, political, and societal victories, have worried that association with an even more unfamiliar and stigmatized minority group would imperil those advances. Trans people, weary of advocates prioritizing gay rights over trans rights, have worried that LGB people might achieve greater equality and then abandon the field without extending a hand to transgender people. But the Supreme Court’s landmark decision on Monday in Bostock v. Clayton County provides the strongest possible counterargument that when LGBT people band together to press for rights for the entire community, they can achieve momentous victories that would not have been possible working on their own.

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‘Dreamers’ get a reprieve. Republicans get demoralized.

In yet another blow to the right’s extreme and mean-spirited agenda, the Supreme Court on Thursday held that President Trump had not lawfully pulled the plug on President Barack Obama’s executive order instituting the Deferred Action for Childhood Arrivals program. …Constitutional scholar Laurence Tribe told me, “This was an important victory not just for the Dreamers, who now become a campaign issue in light of the limbo in which their status was left by the Court’s 5-4 decision, but for the rule of law.” He explained, “The majority’s refusal to accept the administration’s post-hoc rationalization for DACA’s rescission — a rationalization that, as the Chief Justice’s opinion made clear, failed to explain, let alone justify, invalidating the forbearance part of the DACA policy and addressed only the benefits part — was an important vindication for the principle that agency decisions that are arbitrary and capricious when issued cannot be rescued by some after-the-fact suggestions of alternative grounds on which the decisions might have been reached.”

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LGBT rights ruling: ‘Potent new precedent’ on climate?

A landmark Supreme Court decision this week that affirmed protections for lesbian, gay, bisexual and transgender employees in the workplace could provide powerful ammunition for climate litigators. In a 6-3 opinion Monday, Justice Neil Gorsuch wrote that Title VII of the Civil Rights Act protects “all persons” from discrimination based on sex, including sexual orientation and gender identity. Employees, the court found, can therefore not be fired from their jobs simply for being gay or transgender. The case, Bostock v. Clayton County, Ga., could serve as key precedent for lawyers pushing for more stringent regulation of greenhouse gases under the Clean Air Act…Gorsuch’s decision in Bostock follows a similar logic path to the opinion in the watershed climate case Massachusetts v. EPA, said Joe Goffman, executive director of Harvard University’s environmental law program. In the 2004 case, the Supreme Court acknowledged that Congress crafted the Clean Air Act with “unknown unknowns” in mind and said that the plain text of the statute left room for EPA to make decisions, such as whether to regulate greenhouse gas emissions as air pollutants, based on new scientific understanding. Something similar happened in Gorsuch’s reading of the Civil Rights Act, said Goffman, a former EPA official. “The language of the statute was crafted in a way so that it could accommodate situations that were not necessarily anticipated by Congress at the time the language was crafted, but which the statue could still cover as, in this case, society’s understanding of the issue evolved,” Goffman said.

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US Supreme Court ruling ‘extremely positive’ for LGBT community, says UN Rights Expert

Victor Madrigal-Borloz, UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, called the ruling a “very significant step towards breaking the cycle of discrimination that often condemns lesbian, gay, bisexual, trans and gender-diverse persons to social exclusion, and ultimately, to poverty.” The ruling clarifies that Title VII of the United States Civil Rights Act of 1964 – which bans discrimination based on sex – is applicable to sexual orientation and gender identity…In most UN Member States, national laws do not provide adequate protection from employment-related discrimination on grounds of sexual orientation and gender identity, Mr. Madrigal-Borloz said. In the absence of such laws, employers may fire or refuse to hire or promote people, simply because they are – or thought to be – gay, lesbian, bisexual, trans or gender-diverse… “The judgement will have an extremely positive impact in addressing stigma, promoting sociocultural and economic inclusion, and furthering legal recognition of gender identity – all of which have been identified by my mandate as fundamental to address the root causes of violence and discrimination,” Madrigal-Borloz said. The case also illustrates the vital role that victims can play in furthering justice. “It is sad to note that two of the victims in these cases did not live to see the outcome of their struggle, but uplifting to know that their resolve, their resilience and their determination will now benefit millions of LGBT persons,” he added. Victor Madrigal-Borloz (Costa Rica) assumed the role of UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity on 1 January 2018, for a three-year term. He is a senior visiting researcher at the Harvard Law School Human Rights Programme.

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Gorsuch Paves Way for Attack on Affirmative Action

An article by Cass SunsteinDoes the Supreme Court’s decision in Bostock v. Clayton County, Georgia, forbidding employment discrimination on the basis of sexual orientation, also spell the end to affirmative action? That may sound like a crazy question. But Justice Neil Gorsuch’s opinion, emphasizing the need to follow the “original public meaning” of legal texts, gives a real boost to opponents of affirmative action. In fact, a passage in that opinion seems as if it was explicitly meant to provide that boost. Here’s the background. The key provision of Title VII of the Civil Rights Act of 1964 makes it: “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” That provision was the governing text in Bostock. It is also the foundation for legal challenges to racial preferences in employment, even if they take the form of voluntary affirmative-action programs. According to those who challenge racial preferences, discrimination is discrimination — period.

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Harvard experts call ruling on LGBT rights a landmark

Harvard faculty members in law and gender issues declared Monday’s Supreme Court ruling protecting gay and transgender workers a landmark for LGBT rights… “It’s based in textual reasoning and rather persuasive in those terms,” said Gerald Neuman, co-director of the Human Rights Program at HLS. “It is written in a way that may be more persuasive to members of the public. The people who are in favor of this kind of discrimination, who are vehemently opposed to this interpretation — I don’t think it will be persuasive to them. But people who might say, ‘I’m not in favor of this kind of discrimination, but I don’t think that the law itself addresses it’ … could be persuaded.” … In a series of tweets, HLS Professor Laurence Tribe also praised Gorsuch’s work. “Today’s 6-3 triumph for the rights of homosexual and transgender people is a victory for justice and for reading laws as they were written rather than as some assumed or intended them to operate,” he wrote. “Justice Gorsuch conducted a master class in interpreting legal texts when he patiently explained why the unexpressed intentions of a law’s authors or the conversational conventions of its users cannot be permitted to trump its unambiguous meaning…Of course progressives don’t always welcome textual analyses and might worry that this Gorsuch majority will complicate their lives in other contexts. To be sure, this remains a very conservative Court. But I say: Be glad for just outcomes when they come your way.”

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LGBTQ Rights and the Supreme Court

A podcast by Noah FeldmanWilliam Eskridge, a professor at Yale Law School and author of the forthcoming book “Marriage Equality: From Outlaws to In-Laws,” discusses this week’s historic Supreme Court ruling that protects gay and transgender rights in the workplace.

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Supreme Court Issues Landmark Ruling On LGBTQ Workplace Discrimination

In a landmark ruling Monday, the Supreme Court said the worker language of the Civil Rights Act of 1964 also protects LGBTQ Americans from discrimination. We dig into this ruling and what it means for workers and employers with WBUR senior news correspondent Kimberly Atkins and retired federal judge Nancy Gertner. We also touch on other news from SCOTUS today, as well as cases still pending.

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What you should know about the Supreme Court’s landmark ruling

The margin of the ruling and the author of the opinion were as stunning as the result. On Monday, Justice Neil M. Gorsuch wrote in a 6-3 ruling (joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen G. Breyer) that the ban on sex-based discrimination in Title VII of the 1964 Civil Rights Act protects employees from discrimination based on sexual orientation or gender identity…The decision quite closely adheres to an amicus brief filed by constitutional scholars Laurence Tribe and Joshua Matz submitted on behalf of several former solicitors general, including Ted Olson and Seth Waxman, and former acting solicitors general Walter Dellinger and Neal Katyal. Tribe tells me that “the decision is a rare shining moment in the midst of all too much darkness,” pointing out the concrete impact on millions of Americans and marking “the first victory ever for transgender rights at the Supreme Court — as well as the first clear recognition that discriminating against individuals because of their sexual orientation constitutes sex discrimination pure and simple even if those who wrote the relevant statutes might not have anticipated that reading.” There are several main takeaways. First, Gorsuch’s opinion should remind Republicans that a true textualist who gives an honest reading of a statute or the provision of the Constitution at hand is not simply a vessel for evangelical Christians and other right-wingers to impose their views on a pluralistic society. As Tribe puts it, the decision shows that “applying legal texts in accord with their meaning can sometimes triumph over efforts to read the minds of the authors and that at least some Justices, including Justice Gorsuch, are consistent in their textualism even if others, including it seems Justices [Brett M.] Kavanaugh and [Samuel A.] Alito [Jr.] and [Clarence] Thomas, are not.”

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LGBT Rights Supreme Court Ruling Is a Power Play by Gorsuch

An article by Noah FeldmanIn one of its most important decisions in years, the Supreme Court has interpreted federal anti-discrimination law to prohibit discrimination on the basis of sexual orientation or transgender status. In a surprise to most observers, the decision was 6 to 3, and written by Justice Neil Gorsuch, one of Donald Trump’s appointees. The decision marks Gorsuch’s most significant move thus far to take on the mantle of the late Justice Antonin Scalia as the intellectual leader of the conservative wing of the court. That may sound strange and counter-intuitive: After all, Scalia harshly opposed landmark decisions expanding gay rights, and it’s difficult to imagine him having joined the Gorsuch opinion. And indeed, Justice Samuel Alito explicitly made Scalia the linchpin of his dissent, insisting (not implausibly) that Scalia could not possibly have been on board with a decision like this one. “The court’s opinion is like a pirate ship,” Alito memorably wrote. “It sails under [Scalia’s] flag, but what it actually represents is a theory of statutory interpretation that Scalia excoriated.” Gorsuch’s ploy might well work. Conservatives may be briefly frustrated by the outcome of this case. But it is liberals — mostly liberal law professors — who make or break judicial reputations. And liberal legal scholars, who have not liked Gorsuch much thus far, are now going to have to hold him up as a model of judicial honesty. He has applied his method to produce a result against his presumed political preferences. That makes him a hero of legal principle, at least for the moment.

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Atlantic Richfield Gets Partial Win in Superfund SCOTUS Case

Atlantic Richfield Co. might be off the hook for added cleanup liability at a Montana site after the Supreme Court on Monday partially resolved a high-stakes Superfund case in the oil company’s favor—but the door is still open for similar claims in other cases. All eyes are now on the Environmental Protection Agency and Montana courts, as they decide what happens next. At issue in the case is an effort by Montana landowners who wanted Atlantic Richfield to pay for additional cleanup work in their backyards. The justices’ 7-2 opinion says the landowners can’t pursue those claims without the EPA’s blessing…But the decision also sidesteps the company’s broader argument that federal Superfund law preempts the types of claims the landowners brought…It’s a mixed result, Harvard Law School professor Richard J. Lazarus said, because the decision “keeps alive the potential for suits under state law in state courts related to Superfund cleanups in future cases,” but with the “major catch” that challengers must first get the EPA’s approval.

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