An unexpected majority opinion

Reading the Supreme Court's current output, one can feel like Hunter Thompson entering Circus Circus in Vegas, looking up at the ceiling and seeing strange shapes cast in disorienting light. The court's decision in Bostock v. Clayton Country, Georgia, 2020 DJDAR 5681, handed down on Monday, is a thrilling victory for proponents of equality and LGBTQ rights. But not because the court's rationale is or should be that controversial. The text of Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based upon sex. In the three related cases before the court, employees were discharged for no reason other than, in one case, the respective employer became aware of the employee's gender identification and, the other two, their sexual orientation. As a person's gender, identification and orientation are necessarily intertwined, the result -- their terminations violated law -- logically followed.

It is cause for celebration. First, because it was a long time coming, not just the end of a long struggle by otherwise marginalized persons for recognition past due. Sadly, two of the three employees before the court had passed away prior to the decision, their banners carried on by their estates.

Second, even though the rationale and the outcome are so obviously defensible, the decision was still so unexpected and such a relief. With Justice Anthony Kennedy's retirement, there was near-universal expectation that gains made in recognizing equality are under dire threat. The legitimate fear, if not obvious reality, is that the Republican Senate majority has an ideological agenda in reshaping the federal bench. Indeed, the Trump administration announced last Friday that it was eliminating regulation prohibiting discrimination in health care against transgender patients. Yet, three days later, it was Trump's handpicked justice, Neil Gorsuch, joined by Chief Justice John Roberts and the court's liberal block, who planted the 6-3 flag.

Third, the decision is excellently executed, well-reasoned statutory analysis. There is a clarity and thoroughness to Justice Gorsuch's opinion that, if followed in subsequent cases, promises a less polarized, ideologically driven court. Even President Donald Trump says he read Gorsuch's 33-page opinion and it is "Very powerful. Avery powerful decision, actually."

Continuing, then, strolling the incandescent casino lobby, Justice Samuel Alito's dissent, joined by Justice Clarence Thomas, asserts that the majority opinion is nothing less than illegitimate "legislation," usurping other branches of government. For the dissent, sexual orientation is obviously a different category than sex. As a formal matter, there is nothing preventing Congress, if it so chose, from correcting what the dissent claims is flawed reasoning. The real issue is whether the court first has a duty to get its statutory interpretation correct. There is no "usurpation." The court issued no order preventing Congress from revisiting the matter. Why the hyperbole? Channeling the late Antonin Scalia's sometimes-peevish rhetorical demeanor, Justice Alito proclaims, "A more brazen abuse of our authority to interpret statutes is hard to recall."

Really? The same day, the court rejected the last of seven petitions before the court challenging the doctrine of qualified immunity, a doctrine the court created out of whole cloth and superimposed upon the Civil Rights Act of 1871. The doctrine makes it unnecessarily difficult for victims of police misconduct to prevail in federal courts. Or as Justice Alito put it, quoting prior precedent in City and County of San Francisco v. Sheehan, 575 U. S. 600 (2015), an exacting standard that "gives government officials breathing room to make reasonable but mistaken judgments" by "protect[ing] all but the plainly incompetent or those who knowingly violate the law." Justice Thomas dissented from the denial of the petition, Baxter v. Bracey, 18-1287, plainly disturbed how unmoored the doctrine is from what was originally enacted.

The court's rejection could not be more disappointing because now, in the wake of the deaths of George Floyd, Ahmaud Arbery and Rayshard Brooks, among many others, more than ever, there is a need for effective feedback mechanisms whereby police misconduct is brought to authorities' attention and for verdicts that impose budgetary consequences for failing to update police training, supervision and discipline. That deterrence mechanism, in addition to delivering justice, is supposed to be one of the federal courts' important tasks. Constitutional rights require remedies. It doesn't work if pertinent facts are not formally uncovered, presented and adjudicated, or if cases that should go to juries don't. Instead, this court-created doctrine protects vaguely (as opposed to clearly) incompetent police officers or those officers that ignorantly violate law. It thereby provides a court-created safe space for aggressive policing and for excusing officers' resulting "mistakes." It is an additional layer of injustice and unaccountability that only fuels the legitimate grievance underlying current protest and unrest. Like so many other court interpretations of doctrine in cases where citizens complain of police abuse, dirty wash going into the judicial machinery, whether whites or colors, too often comes out of the dryer with a deep blue tint.

Some commentators have speculated that the court is waiting for a case where all the justices could agree on the first part of the qualified immunity test, that a constitutional violation had occurred, thereby focusing its attention on the second element, whether the violated right was clearly established by a case on point in the appellate circuit where the offense occurred. That likely would make for a less-fragmented opinion. But this supposition is doubtful. The cases the court shooed away presented horrendous facts. In one, an officer unleashed a police dog on a handcuffed suspect; in another, jailors placed and left for days a suicidal detainee in cells covered in feces; in still another, an officer shooting at a dog accidentally killed a boy who was lying down on the ground otherwise compliant with the officer's commands.

The other possibility is that, for the moment, the court is punting the issue to Congress. Responding to the murder of George Floyd, the Democratic House proposed abolishing the doctrine. By contrast, the president has signaled to the Republican Senate such reform is a nonstarter. It is an evanescent wedge issue injected into an already-polarized presidential election year. Justices may have reasoned this is a good thing. Let voters decide. Regarding this unique and important area of law, such reasoning is wrong. It merely sets up a fight over something that should have been settled in 1871. Again, it is always on the court to first get its statutory interpretation correct. That is the most respectful way to honor the separation of powers that Justice Alito's dissent claims Justice Gorsuch's opinion disrespects.

Next term, the qualified immunity issue will likely return. All the court must do is accept one of the petitions, then energetically chop with the same analytic rigor as Bostock. Qualified immunity will then fall. Meanwhile, the more operative police abuse feedback loop sadly remains, instead of presenting facts to juries, digitally sharing beatings and deaths, followed by disorienting and disheartening protest. 