Wednesday, March 08, 2017

SCOTUS Sends Transgender Restroom Case Back to 4th Circuit: Passively Virtuous or Subtly Vicious?

by Michael Dorf

On Monday, the SCOTUS docket shrank by one case when the Court removed Gloucester County v. G.G. from its argument calendar. The action is not entirely unexpected. On February 23, the clerk directed the parties to file letters with their views on how the case ought to proceed in light of the fact that the Trump administration had withdrawn the Department of Education guidance that was at the root of two of the three questions on which the Court had granted certiorari--involving questions of administrative law. Yet the Court's decision to vacate and remand to the Fourth Circuit was hardly a foregone conclusion given that the third question--whether the school board's policy excluding transgender students like plaintiff Gavin Grimm from the restroom corresponding to his gender identity violates Title IX itself--was still very much alive AND that both parties had urged the Court to keep the case on the docket and address that question.

That issue will now go back to the Fourth Circuit. As Sam Bagenstos, Marty Lederman, Leah Litman, and I noted here last week, an amicus brief we filed in the SCOTUS lays out a straightforward reason why Grimm should win under Title IX, even without a resolution of the question whether discrimination on the basis of gender identity is sex discrimination within the meaning of Title IX: the school board policy undoubtedly segregates on the basis of sex, and as applied to transgender students, such segregation amounts to unlawful discrimination because it imposes severe harm on such students without furthering any important institutional interests. Needless to say, we hope that the Fourth Circuit will now rule for Grimm on that basis (or another).

Meanwhile, in my latest Verdict column I explain why the Trump administration's justification for its volte-face--states' rights--should be rejected. The usual sorts of reasons for granting states flexibility--explicit statutory programs of cooperative federalism, local variation in conditions, experimentation--have relatively little purchase with respect to a federal civil rights statute. The column also considers the possibility that federalism could serve as a means of avoiding backlash, analogizing to the fears that led to the "all deliberate speed" formula in Brown II and the hand-wringing by Chief Justice Roberts in his dissent in Obergefell v. Hodges. As those examples themselves show, I conclude, it is easy to get carried away with a go-slow approach, and so the better course is usually for a court simply to apply its best legal judgment.

Yet there is a distinct possibility that the Supreme Court vacated and remanded in Gloucester County--rather than retaining the case on its docket--out of a similar go-slow approach. Would that be legitimate?

Fifty-six years ago, Alexander Bickel famously argued that in order to maintain its prestige and credibility, the Supreme Court sometimes needed to avoid deciding divisive cases by exercising what he called "the passive virtues." By invoking the political question doctrine, standing rules, and other limits on its jurisdiction, as well as by exercising its discretion not to decide, Bickel thought the Court could and should duck certain questions. When Bickel wrote, it was harder for the Court to duck hard questions because a substantial chunk of the Court's business was on its mandatory appellate (rather than its discretionary certiorari) docket, which is why one of the ducking techniques Bickel endorsed was for the Court to treat mandatory appeals as though they were discretionary by summarily affirming or reversing lower court rulings. Since 1988 the Court has had virtually no mandatory appellate jurisdiction. Today, if the Court wants to duck an issue it can simply deny certiorari.

But if denying certiorari enables the SCOTUS to duck an issue, it does not enable the federal courts as a whole to duck the issue. District courts and federal courts of appeals have almost no discretion to decline cases that fall within their jurisdiction. And if the SCOTUS is worried that the courts are getting ahead of the country in a way that could spark a backlash, then the Court pretty much has to grant cert to rein them in, or else suffer the backlash.

That may well be what was going on in Gloucester County. Perhaps a majority of justices think (or would think, if they carefully considered the question) that Title IX forbids restroom policies like the one adopted by the Gloucester County school board but these justices also think that the country isn't ready for such a ruling. If so, they would have denied cert in any case rejecting a claim like Grimm's but would have felt they had no choice but to grant in the actual Fourth Circuit case, where Grimm won in the Court below. If that's true--and to be clear, this is pure speculation on my part--then that would also explain why the Court has vacated and sent the case back to the Fourth Circuit: the justices are trying to duck the issue.

Yet issue ducking is not cost-free. In a famous law review article of his own, Gerald Gunther criticized what he called "the subtle vices" of Bickel's "passive virtues." Gunther pointed out the curious fact that Bickel thought it extremely important for the Court to be principled and candid in its decisions on the merits but that Bickel endorsed a kind of chicanery regarding the exercise of jurisdiction. In a case with potential parallels to Gloucester County, Gunther deplored Bickel's endorsement of the Court's dishonest manipulation of its jurisdictional statute in order to avoid having to rule on the merits that an anti-miscegenation statute was invalid at a time when white Southerners were still denouncing the Court over school desegregation. Although Gunther does not use the term, he essentially accuses Bickel of endorsing cowardice.

Whether or not that is a fair charge when Gunther leveled it against Bickel, we can ask whether it would be a fair charge if now leveled at the Supreme Court. Suppose that at least five justices think that the correct legal answer in Gloucester County is that Gavin Grimm prevails under Title IX but that they sent the case back to the Fourth Circuit in order to duck the issue. Would that be a form of cowardice?

Of course it need not be. The Court generally (though not always) prefers for the courts of appeals to weigh in on an issue before it considers the matter itself, so the remand can be justified on the ground of standard practice. But again, I'm supposing that this was not the actual motivation. The actual motivation (in my speculation) was to duck the issue until such time that the Court can decide in favor of a transgender student's right to use the restroom corresponding to his gender identity without sparking a backlash. Is that cowardly? Whether or not it is cowardly, is it justified?

I don't want to call anyone a coward, so I'll answer the second question and simply say I think it is not justified. Even assuming that there is sometimes a place for Bickel's passive virtues, I doubt very much that this is such a place. For one thing, a backlash would likely be ineffective. Congress could amend Title IX, but the Supreme Court could--and I think should--find for Grimm or the next plaintiff like him based on the Equal Protection Clause as well. Such a constitutional ruling could not be superseded by Congress.

Moreover, insofar as the justices are worried about backlash, I think they are flat-out mistaken. Ted Cruz could not even win a Republican primary by demagoguing to the far right of Donald Trump on transgender restroom access. Yes, some of the same people who are still freaked out about same-sex marriage are freaked out by the very existence of transgender Americans, but this is simply not an issue that will generate much resistance to the courts.

Do I know that for sure? Of course not. But I'll end with two caveats. First, the fact that Trump moved from making trans-friendly noises during the campaign to revoking the Obama Department of Education policy does not indicate that there would be substantial opposition to a ruling for Grimm or the next plaintiff in his position. Trump has given over much of his domestic policy shop to the social conservative far right. Even Trump's own highly problematic Secretary of Education--Besty DeVos--was reportedly opposed to the policy change, which probably gives a pretty good sense of where the mainstream of the Republican party is on this issue. And if I've over-estimated the level of existing acceptance, a ruling for Grimm would quickly change attitudes, as people discovered that transgender access to restrooms causes nobody any harm.

Second, following Gunther, I would think the Court should reserve the Bickelian passive virtues for rare cases where there really is a clear imperative to duck a case for fear that a substantively correct ruling would cause serious harm. I could be wrong about the impact of a ruling for Grimm, but I'm not clearly wrong. Accordingly, if the Court sent the case back down to the Fourth Circuit to duck the issue on Bickelian grounds, it made the wrong call.


Joe said...

I agreed with your earlier essay criticizing Justice Breyer's "courtesy fifth" ... think they shouldn't have taken the case when they did in the first place.

Once they took it and the Trump Administration acted as they did, was this the right move? I guess it's open to debate including with only eight justices. As to passive virtues and such ... I have mixed feelings. Don't think it is always about "cowardice" either but prudence based on the limits of judicial power.

David Ricardo said...

Why not apply Occam's Razor here and go with the simplest explanation. The Court wanted to hear the arguments that the 4th Circuit would entertain absent the regulatory ruling and also wanted to have a full complement of Justices before making a decision.

As a person in North Carolina, the state at the center of this controversy I can attest to the fact that the issue has relative little controversy or concern. Apart from a rather vocal anti-LGBT set of conservatives the majority here is somewhat indifferent but leans towards allow trans gender individuals ability to use the facilities of their current gender identity. In North Carolina the HB2 law that was a large part of the issue was a political law designed to split the Democrats (it didn't) and not in response to any major concerns on the issue.

Michael C. Dorf said...

In response to DR: Just to be clear, I don't have a hypothesis about why the SCOTUS actually sent the case back. It could have been a straightforward application of the policy of allowing the appeals court to weigh in first. However, ducking is also a possibility. Thus, my analysis is conditional. If ducking is the better explanation--which may not ever be publicly known--then my analysis is relevant.

One small point that some readers might not realize: The Gloucester County case is in Virginia, not NC, although DR is quite right that statewide this is a bigger issue in NC due to HB2.

Diane Klein said...

For those of us who follow the "bathroom issue", what makes absolutely clear what an utter red herring it is, is that it is not REALLY a big deal to ANYONE, as such. It is all about its symbolic significance to all concerned. (Other thoughts forthcoming on this blog at the end of the week!).

Joe said...

"Becoming Nicole: The Transformation of an American Family" by Amy Ellis Nutt continues to be my default recommendation here. Nicole Maines is on Twitter.

There are various accounts out there. This is well written and combines background science with a great human interest story.

qwoijzacxoi said...

Totally disagree! - this is absolutely the spot for Bickel, assuming we agree with Bickel to begin with. First, the judicial system and its impartiality has been under attack through the election cycle and now under Pres. Trump, with no signs of that attack ending soon. SCOTUS really needs all the political capital it can get over the next few years, even if the loss would be fairly limited for this issue as you argue.

Second, transgender issues are still fairly new, I think for both lawyers and laymen. I mean, I know lower court decisions exist but they haven't received the publicity and taken the full political capital hit for SCOTUS yet, given the prevelance of the issue in the news. SCOTUS here could really benefit from a few more transgender issues in other contexts (ie 8th Amendment prison litigation, etc?) to be resolved by lower courts and criticized/debated by the public too, ie. Bickelian letting the lower courts take the initial volley of bullets for SCOTUS.

With that said, my symphathies for briefing the issues only to see it get panned over politics. Wishing times were more normal.

Asher Steinberg said...

I might agree that this weren't a case for Bickelian restraint if I didn't think that you were (a) understating the likelihood of a legislative repeal, which I'd say would have been rather high at the present time, and (b) seriously overstating the likelihood that the Court would be quick to reach the same result on constitutional grounds after a repeal, particularly given expected and potential changes to the Court's makeup, as well as the signal the repeal itself would send the Court. It's hard to say what other forms a backlash could take - I wouldn't rule out a spike in transgender-victim hate crime and harassment - but the repeal is bad enough.

On the merits, like certain ex-commenters, I find your reading of the statute (if it can even, with all respect, be called a reading of the statute as opposed to a reading of comments by Birch Bayh) very awkward. I would think that whether some type of differential treatment is discrimination is a question with an across-the-board answer, as to everyone affected by the policy, that doesn't turn on whether particular persons affected by the policy are harmed by it. Say a school has two basketball teams, one for girls and one for boys. As to most of the girls on the girls' team this policy isn't harmful because they are too short and small to either effectively compete with most male basketball players, or to play against them without running an undesirable risk of injury. But, there's also a very athletic and strong 6'6 girl on the team, perfectly able to play boys her age without any aggravated risk of injury, whose development as a basketball player, which she hopes to parlay into a college scholarship, is thwarted by playing with and against much smaller girls whom she dominates, and since the other girls in her school's league are so much smaller and less talented than she, colleges are less interested in recruiting her because they haven't seen her play against real competition.

Now, all that sounds rather harmful, and if the school's policy were such that it considered applications to play on the boys' basketball team on a case-by-case basis and turned her down solely because of her gender, while turning other girls down for the legitimate reasons to which I alluded, it would make perfect sense to say that she had been discriminated against on account of her gender while her teammates hadn't. But if the school just has a simple policy that boys can play on the boys' team and girls on the girls', it makes no sense at all to me to say that the only person being discriminated against is the 6'6 player because it so happens that the policy really harms her and doesn't harm anyone else. If that's what discrimination means here, does the policy cease to be discrimination even as to her if she she had no interest in college basketball and doesn't mind not developing as a player? Or become discrimination again if she changes her mind and does want to play college basketball? That seems very strange.** I could understand, of course, saying that the discrimination is justified as to the other kids but not as to her, but I take it that's not an argument you can make under this statute. I'm very sympathetic to your bottom line, but I think it's hard to get there under this statute because I don't see where it allows for distinctions between permissible and impermissible discrimination, which I think is really what you're getting at without, of course, saying so.

Shag from Brookline said...

Regarding qwo's (if I can be so personal):

" ... this is absolutely the spot for Bickel, assuming we agree with Bickel to begin with."

specifically what about about Bickel can we agree upon? Did Bickel specifically address trans? How many of us agree on what Bickel said about Brown v. Bd. of Educ.? Asher's basketball hypo addresses dribbling on a girls' team or a boys' team, but when a trans gotta go a trans gotta go. Is a "jump ball" the right call for nature's call? Or should the refs just mop up the court?

Alvarida said...

When in doubt,whip it out....I'm not talking about addadicktome operations but birth certificates.If you are born male or female as it states on birth certificate thats where U go to Konsultan Interior
.........and also,don't splash on me..!!!
End of Rant..!!