← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Sneak Preview: Unanimous Opinions Out Front, Desperate Dealmaking Out Back
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- [00:11]
A
I am Dahlia Lithwick, and this is Amicus Slate's podcast about the courts and the law and the Supreme Court. And we are bringing you an Opinion Palooza special episode. On Thursday morning, the high court did a whole bunch of very late spring docket cleaning, churning out six decisions of which virtually all were unanimous or nearly unanimous. And one was to note that they were regretful about taking a case. Now, even though the subjects at hand are big hot button issues, reverse discrimination, religious liberty, guns, the opinions were in fact pretty narrow and sober and dare I say, kind of humble and minimalist. Mark Joseph Stern is here to talk about some of these decisions and about the court's ability to play nicely when the occasion requires as much. Hi, Mark.
- [01:07]
B
Hi, Dalia.
- [01:08]
A
So let's start maybe with Ames v. Ohio Youth Department. This is a case about, quote, unquote, reverse discrimination and the standard of proof that is required by members of a majority group claiming to have been fired in this case for not being gay. Ketanji Brown Jackson writes on a unanimous opinion for the court saying what sort.
- [01:31]
B
Of Katanji Brown Jackson wrote that even if you are a member of a majority group, you don't face any heightened burden to state a claim of workplace discrimination. The 6th U.S. circuit Court of Appeals held otherwise. The 6th Circuit held that if you're a member of a majority group, so if you are white, if you are a man, if you are heterosexual, you must show background circumstances to support the suspicion that you faced discrimination. Even though you normally not a victim of discrimination, you are typically more frequently the discriminator. And Justice Jackson said, nope, that is not the rule that appears nowhere in the text of Title 7. We are going to overturn that principle and state that no matter who you are, whether you're white or black, man or woman, straight or gay, you do not have a special heightened burden in order to come into court and bring a claim of unlawful workplace discrimination.
- [02:30]
A
And so in some sense, this is just a leveling, right? It just says you don't have a higher burden. Clarence Thomas has some thoughts on this. But is this a win?
- [02:41]
B
I think this is a good decision. And I know that I'm swimming against the tide of progressive commentators in saying that, but I just think this is clearly correct. You know, Title seven protects individuals. It doesn't protect groups. It doesn't say black people are protected in the workplace. It bars workplace discrimination on the base basis of race. It doesn't say that women or gay people are protected in the workplace. It bars discrimination on the basis of sex. And so for the 6th Circuit to require a special burden of proof for people who happen to be part of a majority group to show that there's something really weird and unusual going on that would make them the victim of discrimination, even though they're usually the bad guys. It just violates the text of Title vii. And I also think that Justice Jackson, in writing this opinion, secured a pretty important victory, which was to reaffirm the supreme court's decision from five years ago in Bostock vs Clayton county, holding that Title 7 prohibits discrimination on the basis of sexual orientation. You know, that decision is still pretty contentious. A lot of lower courts refuse to cite it as legitimate precedent, but Justice Jackson cites it twice, as if to sort of remind the lower courts in the country, yes, this decision is on the books. It is correct. It is not an outlier. And she cites it for the principle that whether you are gay or straight, you are still protected from workplace discrimination because of your orientation. And at this Supreme Court, I consider that to be something of a win because it at least ensures that Bostock doesn't drift away as this kind of questionable outlier that would make it more vulnerable to reversal in the future.
- [04:27]
A
I think I'm probably just fractionally more grumpy pants than you are on all things Mark. But the notion that Justice Jackson saying, like, don't let Bostock drift away while we're all sort of shivering under the shadow of Skremetti, which is, of course, the gender affirming care case, that I think will be one of the blockbuster cases of the term. And all of us, all of us watching to see whether Bostock still lives to see another day just. Just feels a little. A little too hopium for me. But I hope I'm wrong. And I do take your point, and it's an important point that for the liberal justices to use these opinions to say, hey, look over here, this is still good law, is not completely trivial. It just feels like in the grand scheme of things, one queries whether this is a huge, glumping win.
- [05:25]
B
Sure. And especially here, where the facts are really icky, right? This straight woman is saying, I was discriminated by this cabal of gays in my workplace. And I just want to be clear. This does not mean that she wins her case. Right. This does not mean that the plaintiff is going to prevail. All it does is slightly lessen the burden that she has to carry in court in a very kind of technical legal way. She may well still lose, and a jury could find that actually there was no cabal of gays. She was just not super good at her job. That is possible. And so I just urge listeners not to let that ickiness of these facts get in the way of a fair assessment of the law, which again, I just think Justice Jackson clearly got right, even if it gives, for now, victory to a woman whose complaint seems kind of homophobic.
- [06:16]
A
Let's talk about Catholic Charities. This is one in a long pack of cases seeking tax exemption carve outs for religious groups who are providing both religious and secular services, this time in the state of Wisconsin. And we get another unanimous opinion penned by Justice Sotomayor.
- [06:36]
B
Another good decision in my view. So Justice Sotomayor says that the state of Wisconsin cannot refuse to grant a tax exemption to Catholic Charities just because the charities that the church happens to run do not involve direct proselytization to recipients and do not serve only co religionists. So what I mean by that is the charities welcome all comers. They help people, for instance, with disabilities. They don't force them to go to Mass in order to receive this aid. They don't say, oh, we'll only help you if you're Catholic. Everybody who walks in the door gets service from Catholic Charities in Wisconsin. And the Wisconsin Supreme Court held, well, that means it's not really a religious service. It's not really a religious organization. So we don't think it qualifies for this exemption from the state unemployment compensation tax. And Justice Sotomayor said, no, that is the wrong way of thinking about it, because what that approach does is essentially discriminate against religions that provide charities that aren't infused with some kind of religious faith and doctrine and proselytization, and favors religions that do provide charities infused with some kind of faith and maybe even discrimination in favor of co religionists. So, for instance, Sotomayor says there are some Protestant denominations who make you go to church in order to get food from the food bank that might only serve you if you avow that you are part of this particular faith. And the way that Wisconsin law operates, those charities are favored because they are stricter, right? Because they discriminate. And Catholic Charities are disfavored because they don't discriminate, because they welcome everyone. And Justice Sotomayor said that cannot be allowed. We cannot permit this discrimination. And she holds that under both the free exercise clause of the First Amendment and the establishment clause of the First Amendment, and this is key, she says it would violate the establishment clause for a state to essentially favor certain faiths, certain denominations that offer charities in one particular way over other faiths and other denominations that offer charities in a way that the state doesn't like as much. And so this is a decision that is very much rooted not only in religious freedom as we traditionally understand it, but also in the separation of church and state in the principle that we shouldn't have states picking winners and losers of certain programs and exemptions because of how they happen to practice and exercise their faith.
- [09:08]
A
And I just want to say, again, I want whatever you're having, because for me, this just looks like another in a sort of long trend of groups that are seeking to benefit from, you know, all sorts of government programs and to also sort of sidestep here worker protections that are really essential. So, yes, it's important. I think it's really important that Justice Sotomayor breathes life into the, you know, floppy fish that is the Establishment Clause that is shrunk down to virtually nothing. But it does feel like, in the larger sense, it's a continuation of a pretty dangerous trend. And again, I find myself wondering, you know, how is this good when the Court's liberal wing joins on these cases and gets some good dicta in there? But the trend line is pretty clear.
- [10:01]
B
Look, the trend line is clear. I'm not gonna deny that we just came one vote away from the Supreme Court requiring states to create religious public charter schools. Right. But the way that Justice Sotomayor wrote this opinion really does breathe life into that floppy fish of the Establishment Clause. It does acknowledge that the separation of church and state still exists. I mean, she favorably cites Santa Fe Independent School District versus Doe, which is a key case prohibiting school prayer. She cites, actually several cases that prohibit prayer in public schools and says they are still good law. And she gets the whole Court to sign on to that. And that's just a few terms after the Kennedy v. Bremerton case, where the Supreme Court dismantled some protections against Christian prayer in public schools. So I think she took this case and used it to the best of her abilities to try to shore up some precedents that have been flailing that do protect separation of church and state. Whether or not her colleagues will hold fast to that in future cases is a big question mark. But because I'm huffing hopium, I'm going to call this a little bit of a triumph for the Establishment Clause and just be glad that at least, at least the Court acknowledged that this key provision of the Constitution still exists and hasn't been written out by judicial fiat.
- [11:16]
A
No, it's. I'm. I'm I'm here for the Lucy and the football every time. And you, more than anyone, are here for the Lucy. And I appreciate that. Let's continue this theme Mark, because the Court also on Thursday, unanimously Slate plus members can access our conversation in full. Right now, you can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify, or you can visit slate.com amicusplus to get access wherever you listen. We'll be back with your regularly scheduled Amicus episode this Saturday morning. Until then, do take good care. Hang on in there.