What Is John Roberts Up To?
Voting with liberals in two important civil rights cases, the Chief Justice seems to be invoking a version of the Garland rule: award no policy victories on the last year of a presidential term
Three days ago, the first pre-election blow to Trumpism arrived. In a 6-3 decision, with Chief Justice John Roberts and Associate Justice Neil Gorsuch (a Donald Trump appointee) voting with the majority, the Court ruled that Title VII of the 1964 Civil Rights act does make discrimination in the employment of LGBT people illegal.
Although Title VII does not mention sexuality or gender expression as protected categories, Gorsuch notes that "the limits of the drafters' imagination supply no reason to ignore the law's demands."
These were important words, and an implicit swipe at what is known in the law as originalism, or textualism. This is the notion that a court’s decisions cannot reinvent the original purpose of a law, a longstanding and fundamental principle for contemporary conservative judicial philosophy.
On January 16, 2020, Senator Chuck Grassley swears in John Roberts at the impeachment trial of Donald J. Trump: did he determine that he was not going down with the ship? (Photo credit: United States Senate photographer)
What does this SCOTUS decision mean? Although questions of religious belief still muddy the water, all 50 states must now protect LGBT employees from being fired based on sexuality and gender expression.
It also means that Trump has been unable to deliver on three more key issues—other than a border wall— to which his base is committed: states’ rights, the right to discriminate against LGBT people as a matter of personal or local preference, and the legal marginalization of transgender people.
Call it a compound victory. But there’s more.
The #MAGA crew will also cry bitter salt tears this weekend because deporting undocumented immigrants by the hundreds of thousands has once again been foreclosed. In a second decision, SCOTUS has foiled the Trump administration's attempt to bleed the Deferred Action Program for Childhood Arrivals (DACA) to death. Roberts voted with a 5-4 majority and wrote the opinion, sending the policy back to the Department of Homeland security and effectively safeguarding Dreamers until after the November election.
Is John Roberts securing the reputation of his Court against a failed conservative movement? His own place in the history books? Is he watching what is happening in the streets and learning? We can't know yet, but it certainly looks like it. The abortion decision that is due to come down in the next several days will tell us more about whether, in the age of populist conservatism, Roberts—who was, after all, appointed by George W. Bush, practically a liberal by comparison to Trump— is a moderate, or just shrewd.
While SCOTUS was doing what SCOTUS does, we at Public Seminar were, of course, putting together a weekly issue for you. "First I sold my body and then my mind," Janet Capron confides in the essay about sex work that leads this week, "and I'm here to tell you which one of those two livelihoods caused me shame." I'm not saying any more: read it. Next, Amanda Klein takes a deep dive into a Greenville, NC Trump rally; and a New York State prison inmate tells Public Seminar where all that "free" hand sanitizer is coming from. She and her comrades manufacture it for $4.16 a day.
In politics this week, Jeffrey C. Isaac argues that police abolition is a bad idea: well-trained police are good for some things, including enforcing social justice. In our capitalism section, Pat Garofalo of the American Economic Liberties explains why states are falling all over themselves to woo Tesla's Elon Musk — and also why they shouldn't, Fred Block digs into the economics of making the N95 mask.
Our last three essays return you to the life of the mind. Dvora Meyers writes about a time when gymnastics floor exercises were performed to live music, and athletes forged strong ties with piano players. Mark Larrimore beckons you to mid-century Union Square, where New School student and avant-garde Chinese writer H.T. Tsiang mingled with artists, activists, and workers, drinking in the atmosphere of downtown New York. We close the issue with Jonathon Catlin and Benjamin P. Davis, who reflect on what they learned in their "Sentencing the Present” — and, we hope, on returning to these digital pages soon.
Claire Potter is co-executive editor of Public Seminar, Professor of History at The New School for Social Research, and author of Political Junkies: From Talk Radio to Twitter, How Alternative Media Hooked us on Politics and Broke Our Democracy (Basic Books, 2020). You can tweet with her @TenuredRadical.