Litigation in perpetuity?

Supreme Court Justice Neil Gorsuch’s 6-3 majority opinion Monday in the case of Bostock v. Clayton County found that the Civil Rights Act of 1964 barring workplace job discrimination on the basis of sex also covers homosexuals and transgendered, not just males and females.

The devil is in the details, which this ruling apparently leaves up to future litigation.

From the AP account:

But Monday’s decision is not likely to be the court’s last word on a host of issues revolving around LGBT rights, Gorsuch noted.

Lawsuits are pending over transgender athletes’ participation in school sporting events, and courts also are dealing with cases about sex-segregated bathrooms and locker rooms, a subject that the justices seemed concerned about during arguments in October. Employers who have religious objections to employing LGBT people also might be able to raise those claims in a different case, Gorsuch said.

“But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today,” he wrote.

Then there is the question of whether biological males could declare themselves transgender and compete against women in sporting competition.

Justice Samuel Alito addressed this in his dissent:

Another issue that may come up under both Title VII and Title IX is the right of a transgender individual to participate on a sports team or in an athletic competition previously reserved for members of one biological sex. This issue has already arisen under Title IX, where it threatens to undermine one of that law’s major achievements, giving young women an equal opportunity to participate in sports. The effect of the Court’s reasoning may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female and students who are taking male hormones in order to transition from female to male. … Students in these latter categories have found success in athletic competitions reserved for females.”

Reality vs. delusion? Let the arguments begin.

Supreme Court building. (AP pix)

 

Newspaper column: Trump is reshaping the federal judiciary — for the better

Thanks, Harry, because you exercised the “nuclear option” in 2013, ending the requirement that judges had to be confirmed by at least 60 senators instead of a simple majority, President Donald Trump has secured the appointments of about twice as many federal judges as each of his three predecessors — and most of them have been conservatives sworn to protect the fundamental liberties spelled out in the Constitution.

Of the 50 circuit court judges nominated by Trump and confirmed by the Senate, only 17 managed to garner the previously mandated 60 Senate votes. Among those was former Nevada Solicitor General Lawrence VanDyke, who was confirmed by a vote of 51-44 with both of Nevada’s Democratic senators choosing politics over principles and voting “nay.”

In November 2013, then-Democratic Senate Majority Leader Harry Reid of Nevada exercised the nuclear option, calling for changing the Senate rules by a simple majority vote. It passed, 52-48 with three Democrats voting against changing the rules.

President Barack Obama praised the action saying Republicans were blocking his nominees based on politics alone, not on the merits of the nominee, according to a Politico account at the time.

Then-Republican Senate Minority Leader Mitch McConnell of Kentucky tried to recess the Senate for the day to block the vote. “The solution to this problem is an election,” he said. “The solution to this problem is at the ballot box. We look forward to having a great election on 2014.”

Republicans regained the majority in the Senate in 2014. In 2017, now-Majority Leader McConnell further changed the rules to allow confirmation of Supreme Court justices by a simple majority. Neil Gorsuch was confirmed by a 54-45 vote, and Brett Kavanaugh by 50-48.

In addition, the Senate has confirmed 133 of Trump’s federal district court nominees. While most of those garnered more than 60 recorded votes, many were confirmed by a voice vote.

In an editorial praising the caliber of the Trump judicial nominees, The Wall Street Journal noted, “The Trump-McConnell judiciary may be Harry’s finest achievement.”

The editorial noted that when Trump took office, Democratic appointees made up a majority on nine of the 13 circuit courts. Trump’s 2019 appointments flipped the majorities in the 2nd, 3rd and 11th Circuit Courts, meaning seven circuits now have a majority of Republican appointees.

In addition, the longtime uber-liberal 9th Circuit Court of Appeals, to which VanDyke was appointed, now consists of 16 Democratic appointees and 13 Republican appointees. “Expect fewer headlines featuring nationwide injunctions out of San Francisco,” the editorial opined.

The Journal editorial predicts, “The new wave of conservative judges is more likely to protect such core liberties as religious freedom, political speech and assembly, gun and property rights. Many will also be more alert to violations of the Constitution’s separation of powers, including regulatory abuses. Yet there are varying opinions on criminal law, executive authority, and the scope of judicial restraint, among other issues.”

Reid is nothing if not consistent. In a recent op-ed in The Salt Lake Tribune, Reid complained, “Senate Republicans have hijacked our Supreme Court. They stole a seat that should have been filled by President Obama in 2016 and they rushed to confirm Brett Kavanaugh last year despite ample evidence that he lied to Congress. The result is the Supreme Court is now a ticking time bomb, set to blow up any meaningful progressive reforms for decades to come.”

He concedes his own role in the outcome, saying, “Changing the rules to confirm Obama’s highly qualified judges was the right and necessary thing to do. If we had not done it, Donald Trump would have inherited more judicial vacancies than he already did, and then even more of his right-wing ideologues would be on the bench today eviscerating rights Americans have long held dear.”

Like the Second Amendment right to gun ownership? Or the First Amendment rights of free speech and exercise of religion? The rights delineated in the Fourth, Fifth and Sixth amendments?

A recent Washington Examiner editorial also notes what Reid has unintentionally wrought and concludes, “During his run for the presidency, Trump regularly and energetically promised to make a priority of putting well-credentialed conservatives of excellent character and scholarship on the federal bench. It is a promise he has kept, much to his credit and for the country’s greater good.”

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Newspaper column: Can a Nevada law pass constitutional muster?

Our federal and state constitutions are meant to lay the ground rules for what our governments can and cannot do, spelling out the rights of the individual to be free from the dictates for well-meaning but overweening lawmakers.

A recent obscure and little-noted Supreme Court case out of Minnesota tore the heart out of one of those rights by flippantly dismissing the significance of one of those rights and claiming the outcome is what is best for the lackadaisical peons.

What other rights might be in jeopardy?

The case was a challenge to a Minnesota law that requires a divorced spouse to be automatically dropped as a life insurance beneficiary — a law that treads on the U.S. Constitution’s Contracts Clause, which states, “No State shall … pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts …” A life insurance policy is most assuredly a contract.

From SCOTUS blog

Nevada has a similar law, NRS 111.781, passed in 2011, that states all listed beneficiaries on life insurance policies are automatically revoked once a divorce is finalized.

Nevada’s state Constitution also states, “No bill of attainder, ex-post-facto law, or law impairing the obligation of contracts shall ever be passed.” Doesn’t abrogation constitute impairment?

The underpinning of such laws is that lawmakers believe the average mope is too lazy or too ignorant to initiate a change in life insurance beneficiaries following a divorce.

The case of Sveen v. Melin upheld the Minnesota version of this law by a vote of 8-1 with only Justice Neil Gorsuch dissenting.

In 1998 Mark Sveen purchased a life insurance policy naming his wife Kaye Melin as beneficiary. In 2002 Minnesota passed the law in question. Sveen and Melin later divorced and Sveen died. Melin and Sveen’s children from a previous marriage sought the insurance money.

The court held: “The retroactive application of Minnesota’s statute does not violate the Contracts Clause.” No one even raised the question of whether it was ex post facto.

Even Justice Gorsuch throws the Contracts Clause under one wheel of the bus, writing, “Everyone agrees that the law is valid when applied prospectively to policies purchased after the statute’s enactment. But Minnesota wants to apply its law retroactively to policies purchased before the statute’s adoption. The Court of Appeals held that this violated the Contracts Clause, which guarantees people the ‘right to “rely on the law … as it existed when the[ir] contracts were made.”’ …That judgment seems to me exactly right.”

A prospective contract impairment is OK, but not a retroactive one?

“Of course, the framers knew how to impose more nuanced limits on state power,” Gorsuch writes later. “The very section of the Constitution where the Contracts Clause is found permits states to take otherwise unconstitutional action when ‘absolutely necessary,’ if ‘actually invaded,’ or ‘wit[h] the Consent of Congress.’…  But in the Contracts Clause the framers were absolute. They took the view that treating existing contracts as ‘inviolable’ would benefit society by ensuring that all persons could count on the ability to enforce promises lawfully made to them — even if they or their agreements later prove unpopular with some passing majority.”

But Justice Elena Kagan, writing for the majority, rationalizied, “True enough that in revoking a beneficiary designation, the law makes a significant change. As Melin says, the ‘whole point’ of buying life insurance is to provide the proceeds to the named beneficiary. … But … the statute is designed to reflect a policyholder’s intent — and so to support, rather than impair, the contractual scheme.”

Lawmakers and justices are mind readers who can tell what people really want to do rather than what they actually do under signed contracts.

Gorsuch concluded, “The judicial power to declare a law unconstitutional should never be lightly invoked. But the law before us cannot survive an encounter with even the breeziest of Contracts Clause tests. It substantially impairs life insurance contracts by retroactively revising their key term. No one can offer any reasonable justification for this impairment in light of readily available alternatives. Acknowledging this much doesn’t even require us to hold the statute invalid in all applications, only that it cannot be applied to contracts formed before its enactment.”

Since Nevada’s law and Nevada’s Constitution appear to be in conflict, there is a chance this controversy could arise here and be settled at the state level. There are principles at stake, as well as money.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Newspaper column: Court case is about free speech, not abortion

This past week the U.S. Supreme Court heard arguments in a case — NIFLA v. Becerra — that could answer the question of whether forcing speech on certain professionals is a violation of the free speech clause of the First Amendment.

NIFLA is the National Institute of Family and Life Advocates, which gives legal advice to pro-life pregnancy centers, and Becerra is Xavier Becerra, the attorney general of California.

At issue is a California law, the Reproductive FACT Act, that requires “crisis pregnancy centers” to post notices informing pregnant women about state-subsidized free or low-cost abortions.

The law also requires pro-life, religious-oriented unlicensed centers to place extensive disclaimers in large fonts and in as many as 13 languages in their ads and on billboards telling people about abortion services, significantly increasing their cost to advertise. The law exempts abortion providers, hospitals and other healthcare facilities.

The Ninth Circuit upheld the law.

The case could reverberate in this year’s Nevada gubernatorial election, because Attorney General Adam Laxalt, who is running for the Republican nomination to be governor, signed onto to an amicus brief in the case with 21 other states, challenging the law as an unconstitutional burden on free speech.

According to the donation-funded news website The Nevada Independent, the two leading Democratic gubernatorial candidates, Clark County Commissioners Steve Sisolak and Chris Giunchigliani, have sharply criticized Laxalt for taking sides in the lawsuit, calling him “anti-choice.” Sisolak and Giunchigliani are both donors to the website.

The amicus brief argues the California law is not “an informed consent” law, which the courts have upheld.

“Informed consent is required specifically so that the patient can assess the risks and consequences of a procedure that a doctor is seeking to perform. …” the brief in question argues. “In contrast, a State’s desire to compel clinics to disseminate information about the availability of state funding for procedures those clinics do not perform has nothing to do with allowing a patient to assess the risks and consequences of a medical procedure about to be performed.”

The targeted clinics provide pregnancy tests, ultrasounds, referrals and consultations, which involve little, if any, risk.

The brief concludes, “If there is evidence of wrongdoing on behalf of any of the medical clinics, California may unquestionably enforce those standards through the power of its regulatory authority, like any other State. But enforcing standards does not necessitate a blanket requirement compelling medical clinics to advertise state- subsidized services they do not provide.”

During oral arguments this past week, the questions asked by both liberal and conservative justices indicated they thought the law an overreach.

“If — if it’s about just ensuring that everyone has full information about their options, why should the state free-ride on a limited number of clinics to provide that information?” asked the court’s newest conservative member, Neil Gorsuch. He later added, “Well, but if you’re trying to educate a class of — of persons about their rights, it’s — it’s pretty unusual to force a private speaker to do that for you under the First Amendment.”

Conservative Justice Samuel Alito asked about California’s effort to create a new category of speech called professional speech, which would have lesser First Amendment protection than other speech.

“I mean, this case is very important in itself, but adopting this new category of speech would have far-reaching consequences. …” Alito said from the bench. “But just to take a couple of examples: Journalists are professionals. So would they be subject to this standard? How about economists? How about climate scientists? How about a fortune teller? The Fourth Circuit said that a fortune teller is a — is a professional. How about somebody who writes an advice column for parents? I mean, wouldn’t we be getting into very dangerous territory if we do this?”

Justice Elena Kagan, one the markedly liberal justices, questioned the way the law was “gerrymandered” to target a select group for the content of their speech.

“Because if it has been gerrymandered, that’s a serious issue,” she stated. “In other words, if, you know, it’s like, look, we have these general disclosure requirements, but we don’t really want to apply them generally, we just want to apply them to some speakers whose speech we don’t much like.”

The question to be resolved in California is about free speech, not abortion.

Laxalt did join a 25-state amicus brief a year ago defending a Texas law banning “dismemberment” abortions, in which fetuses are torn apart in the womb.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Both sides of the national abortion argument, plus free-speech rights, are at the center of Supreme Court case NIFLA v. Becerra. (AP pix).

Justices ask questions about California law requiring abortion information

On Tuesday the U.S. Supreme Court heard arguments on the constitutionality of a California law requiring pro-life pregnancy clinics to inform women about the availability of state-sponosored abortions.

The lawyers were frequently interrupted by the justices asking pointed questions. One by Justice Samuel Alito was particularly concerning. He asked about California’s effort to create a new category of speech called professional speech, which would have lesser First Amendment protection than other speech:

I mean, this case is very important in itself, but adopting this new category of speech would have far-reaching consequences.

And I — I — I’d like you to explain why that is consistent with Stevens and other cases where the Court has recently said we are not going to recognize any new categories of unprotected speech and how you would define the boundaries of professional speech.

And there have been a lot of cases on — there have been some cases on this in the lower courts. But just to take a couple of examples: Journalists are professionals. So would they be subject to this standard? How about economists? How about climate scientists? 

How about a fortune teller? The Fourth Circuit said that a fortune teller is a — is a professional. How about somebody who writes an advice column for parents?

I mean, wouldn’t we be getting into very dangerous territory if we do this?

The lawyer replied that the such laws would not not include economists or journalists, but would include doctors and lawyers and maybe accountants.

And why the distinction? The state is commandeering the free speech of pro-life pregnancy centers to convey its message, why not journalists?

Justice Neil Gorsuch offered this:

Well, if it’s the first kind of statute, then why shouldn’t this Court take cognizance of the state’s other available means to provide messages? If — if it’s about just ensuring that everyone has full     information about their options, why should the state free-ride on a limited number of clinics to provide that information?”

Justice Anthony Kennedy asked whether a pro-life clinic that posts a billboard saying “Choose Life” would have to comply with the law. The answer was, yes. Actually 29 words in the same size font. It was not made clear whether that included posting the message in 13 languages.

Would this billboard have to include a message on where to get an abortion under California law? Yes.