Supreme Court

Conservative analysts will criticise this judegment for seeming to equate “sex” (meaning gender) with “sexual orientation” and “gender identity”, as well as for going against the general understanding of Title VII which prevailed at the time the Civil Rights Act was passed. In his dissenting judgement in this case, Judge Alito referred to the majority’s interpretation as “brazen” and “preposterous”.

Alito further emphasised that the majority was not relying on the text of the Civil Rights Act, as previously understood: “The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation … that courts should ‘update’ old statutes so that they better reflect current values of society.” The battle lines of statutory interpretation have been drawn, with Chief Justice Roberts appearing on the Liberal team.

Obama Daca

The second of the three recent cases in which Chief Justice Roberts appears to have departed from Conservatism — Department of Homeland Security v Regents of the University of California — concerns migrant rights and the Obama Administration’s Deferred Action for Childhood Arrivals (DACA) Program.

Under the DACA, which was introduced in 2012, undocumented migrants who went to the USA as children have been allowed to apply to remain in the country, for two years, to work, and to receive certain federal benefits. About 700,000 people, mainly from Latin America, have availed themselves of this opportunity for protection.

In 2017, however, the Trump Administration sought, among other things, to rescind the DACA programme. In the case at hand, the Court was called upon to decide whether, as the Trump Administration argued, the rescission of the DACA programme could take effect as a measure consistent with American administrative law.

Trump response

By a majority of five to four, the Court held that the Trump Administration’s approach was in breach of the law. The majority judgement on the main issue — whether the rescission was lawful — was written by the chief justice himself. It noted that the Trump Administration had discretion to rescind the DACA programme, but to do so, the Administration needed to provide a reasoned position for the rescission of the main parts of the programme. As the rescission did not give adequate reasons, the Trump approach could not stand, without further elaboration.

This majority decision, in a case with several dimensions, has the humanitarian effect of preserving rights for young people by allowing them to remain in the USA in keeping with the Obama approach. In opposition, the Conservative, minority, approach, as presented for instance by Judge Thomas, is that the DACA was unlawfully imposed ab initio by Obama, and that Trump has now been obliged to continue implementing an unlawful programme.

The effect of this decision will be to offer opportunities to the traditionally dispossessed, a key Liberal objective implicitly supported here by the Conservative Chief Justice.

abortion rights

The third and final recent case in which Chief Justice Roberts appears to undermine the Conservative/liberal dichotomy is June Medical Services LLC v Russo, on the vexed question of abortion rights. In this case, the State of Louisiana, by Act 620, confined the right to perform abortions only to doctors with “active admitting privileges” at a hospital no further than 30 miles from the place of the abortion. This had the likely effect of reducing the availability of abortions to women in Louisiana. The question for the Court was whether the “active admitting privileges” requirement constituted an undue burden on the abortion rights of women.

undue burden

In the end, the four Liberal judges — Breyer, Ginsburg, Kagan and Sotomayor — relying mainly on Planned Parenthood v Casey and a recent Texas-based case, Whole Woman’s Health v Hellerstedt — concluded that the requirement in Act 620 was in fact an undue burden, and the law needed to be struck down. The abortion rights would remain in place without the restriction requiring doctors to have active admitting privileges.

stare Decisis

Conservative orthodoxy may have placed chief justice in opposition to the Liberal approach, but, in this case, he provided the fifth vote to delete the admitting privileges requirement. In effect, therefore, Chief Justice Roberts voted to uphold abortion rights. His position was built on the premise of stare decisis, the idea that courts should follow their earlier precedents. He found that Act 620 was essentially the same as the law struck down in Whole Woman’s Health v Hellerstedt.

He considered himself obliged to respect that precedent.

Clarence Thomas

Judge Thomas, resolutely on the Conservative side, would have none of this. He criticised Roe v Wade, the primary precedent in favour of abortion rights, as wrongly decided (and even apparently “farcical” in some respects). Indeed, the opening sentence of his dissenting opinion in June Medical Services captures the flavour of the Conservative approach: “Today a majority of the Court perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law…”

The long drawn ideological lines in the divided Supreme Court are sharpening. The chief justice, in trying to keep his Court together, has an unenviable task.

Ambassador Stephen Vasciannie is Professor of International Law at the University of the West Indies, Mona.