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file letters with their views on how the case ought to proceed in light of the fact that the Trump administration had withdrawn the Department of Education guidance that was at the root of two of the three questions on which the Court had granted certiorari--involving questions of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.