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SCOTUS justices are playing the long game

During the 1970s and 1980s, Supreme Court Justices Thurgood Marshall and William J Brennan frequently reiterated their view that the death penalty was “in all circumstances” unconstitutional.

Was that a liberal position?

The question may seem foolish. Both justices are liberal icons. Marshall spearheaded the NAACP legal team that won society-changing battles against segregation before becoming the nation’s first African-American justice. Brennen led the court’s liberal wing for 34 years. And opposition to the death penalty is a quintessentially liberal position.

Here’s the thing, though. The Constitution itself says that capital punishment is permissible. The Fifth Amendment references capital crimes and the unpleasant possibility of being placed “in jeopardy of life or limb” before declaring that no person shall be “deprived of lifeā€¦ without due process of law.” By necessary implication, deprivation of life is permissible when due process is provided. The Fourteenth Amendment repeats the language about due process, making it explicitly applicable to the states.

So another way of looking at Marshall and Brennan’s position is that they believed a Supreme Court justice should have the power to ignore the actual written words of the Constitution.

Whatever else may be said in support of that view, it’s not conspicuously liberal. Then again, it’s not conservative, either. The concentration of power within the judicial branch of government cannot be evaluated on the right-left spectrum at all. Power is ideologically neutral.

In law, even more than other areas of public life, it’s a mistake to evaluate an official’s action solely on the basis of the purported goal or immediate beneficiary.

Often the means are at least as important as the ends, because the law works by precedent.

Methods established in one case can be used in subsequent cases to produce vastly different results. I think liberals as well as conservatives should be glad that Brennan and Marshall never won a majority for their position.

The politics of judging are complex. The media tends to cover the Supreme Court as a sporting venue, focusing on today’s winners and losers. But for the justices, the cases have a different significance. Individual justices sometimes write opinions in series, patiently building up precedent in pursuit of a long-term goal. (Brennan was a master of this technique.) Consider the court’s recent ruling in Bostick v. Clayton County that the Civil Rights Act of 1964 protects gays and transgender people from workplace discrimination. Many professed shock that the majority opinion was written by the staunch conservative Neil Gorsuch.

The logic of the opinion was previewed in my New Year’s Day column of 2018, which described a pathbreaking lower court decision. Here’s a recap. The 1964 Act forbids discrimination on the basis of sex.

For many years, lower courts drew a distinction between sex and sexual orientation. But in the employment context, that’s a distinction without a difference, as can be quickly demonstrated.

Imagine two employees who are identical in every respect except gender.

They have the same education, experience and skills, are equally productive and both like men. If that last detail prompts their employer to fire the man, then it has discriminated against him on the basis of his maleness. That, in a nutshell, is the holding of Bostick.

The intense media coverage has glossed over a point of great importance to employers: mixed motives are no defense. In Justice Gorsuch’s words, “a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision.” Even if sex was only one reason among many, the employer can still be held liable.

The struggle for LGBTQ rights is popularly associated with the left, although there have always been proponents of equality in Republican ranks and bigots among Democrats.

Still, Gorsuch’s opinion was joined by the court’s four liberals while three conservatives (Thomas, Alito, Kavanaugh) dissented. Does that make Bostick a liberal opinion?

Again, it’s not a foolish question. Liberal commentator Joe Patrice warned readers of Above the Law that Gorsuch filled his opinion with “traps.” Its language and reasoning can readily be redeployed to advance conservative causes dear to Gorsuch’s heart. Cass Sunstein, the professor and Obama White House staffer, sounded the same warning in Bloomberg Opinion, citing a threat to affirmative action.

Patrice and Sunstein were saying, in essence, that a conservative justice wrote a conservative opinion. That the opinion nonetheless advances a social movement associated with the left seems paradoxical only if you view the opinion as the endpoint, as it was for the litigants. For the justices, it’s just one small part of a lifetime project.

Neil Gorsuch is likely to serve on the Supreme Court until the 2050s. He takes the long view.

Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at legal.

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