One recurring joke on the always-fun New York Times Pitchbot is “a good thing happened to the Democrats, why does it feel as if it was a bad thing.” I thought of this after today’s decisions, in both directions.
Barbara feels like something of a loss. Although the Court declared the E.O. invalid (and thus allows a classwide injunction to continue) and it cannot be revived by statute, four Justices ignored plain language and century-old precedent to adopt nonsense history. Even accepting Gerard’s point, the closeness of the vote demonstrates how far gone some part of the Court is and how close we came to a constitutional earthquake (the third in two weeks).
On the other hand, perhaps the close outcome dulls the “Court stood up to Trump, quit catastrophizing” rhetoric that the Chief no doubt hoped for in holding this for the final announced decision. Watch the narrative among the media and political leaders (especially establishment Dems): Do they focus on the good result (furthering the Court-as-bulwark story) or on the bad vote count (furthering the reform-is-needed story).
BPJ offers a sliver of silver lining, despite the expected loss by the expected count. The majority, at least in parts, speaks respectfully and empathetically about trans people and their desire to play sports. Yes, the Court preferenced the interests of cis girls over trans girls and it refers to “biological boys” rather than “trans girls.” And the call that neither side be “ostracized or vilified” equates public criticism (of those objecting to trans participation) with government action (prohibiting trans participation as a matter of law). But it at least acknowledges a group of people warranting some solicitude. Especially compared with Justice Thomas’ hateful concurrence suggesting that trans people–by desiring to be referred to and treated as their lived gender–“lie to the public and cease to treat our fellow citizens ‘as equal[s].'” Plus, the decision (also reflected in Gorsuch’s concurrence) is so bound up in the unique nature of sports and the related government interests that it might do less mischief to trans rights more broadly.
I interned at Lambda Legal Defense shortly after Hurley v. Irish-American Gay, Lesbian and Bisexual Group, in which the Court held that the Boston St. Patrick’s Day Parade could exclude a LGBT+ group. Despite the loss, Lambda advocates appreciated the respectful and caring way the Court had spoken about gay people (less than a decade after Bowers). Take the small wins where they come.