The Liberal Supreme Court Justices Keep Joining Conservatives. It's Clear What They're Doing.
The Supreme Court handed down three major decisions on Thursday involving hot-button issues like workplace discrimination, religious freedom, and gun smuggling. Remarkably, all three rulings were unanimous, and each was authored by a liberal justice. The left flank of the court eased the way for “reverse discrimination” claims, expanded religious exemptions from state taxes, and shielded gun companies from a potentially ruinous lawsuit.
On a special Opinionpalooza pop-up episode of Amicus for Slate Plus members, Dahlia Lithwick and Mark Joseph Stern discussed the liberal justices' conciliatory approach to these cases and their ongoing efforts to strike compromises with their colleagues—sometimes at the expense of their own agendas. An excerpt of their conversation, below, has been edited and condensed for clarity.
Dahlia Lithwick: Let's start with Ames v. Ohio Department of Youth Services . This is a case about “reverse discrimination” brought by a straight employee who claimed she faced discrimination by gay colleagues. Justice Ketanji Brown Jackson wrote a unanimous opinion for the court—what did she say?
Mark Joseph Stern: Justice Jackson wrote that members of a majority group do not face any increased burden to prove a claim of workplace discrimination under Title VII. The appeals court had held that if you're a member of a majority group—here, heterosexual—you must show “background circumstances” to support your claim of discrimination, since you are not normally a victim. Justice Jackson overturned that rule because it appears nowhere in Title VII. She held that everyone—white or black, man or woman, straight or gay—has the same burden when bringing a claim of unlawful workplace discrimination.
In some sense, this is just a leveling; it means nobody faces a higher burden because of their identity. Is this a win?
I think it's clearly correct. Yes, the facts are icky—this is a straight woman essentially saying she was discriminated against by a cabal of gays in her workplace. But Title VII protects individuals, not groups. It doesn't say women or gay people are protected; it bars discrimination on the basis of sex. So requiring a special burden of proof for people who happen to be part of a majority group just violates the text of Title VII.
Beyond that, Justice Jackson used this opinion to score a pretty important victory: She reaffirmed the Supreme Court's 2020 decision in Bostock v. Clayton County , which held that Title VII prohibits discrimination on the basis of sexual orientation. That decision is still pretty contentious; a lot of lower courts refuse to cite it as legitimate precedent. But Justice Jackson cites it twice, as if to remind lower courts and the country: Yes, this decision is still on the books. And I consider that to be something of a win because it at least ensures that Bostock doesn't drift away as this questionable outlier that would make it more vulnerable to reversal in the future.
Let's turn to another decision on Thursday and see if you can find the unicorn in the rainbow: Catholic Charities v. Wisconsin is one in a long line of religious liberty cases seeking tax exemptions for religious groups providing both religious and secular services. Here we got another unanimous opinion, this one penned by Justice Sonia Sotomayor.
In my view, it's another good decision! Here, the Wisconsin Supreme Court had denied a tax exemption to Catholic Charities because its services were not overtly religious. Its charities welcome all comers; they don't force people to go to Mass to receive aid, for instance. The Wisconsin Supreme Court held that, because there's no proselytization, these programs aren't truly religious. And so it denied Catholic Charities the tax exemption from unemployment compensation that other religious charities receive.
Justice Sotomayor held that this approach is unconstitutional, because it favors religions whose charities do proselytize over those whose charities do not. For example, some Protestant denominations make you go to church in order to get food from the food bank. The Wisconsin Supreme Court's rule favored those charities. And Sotomayor held that, under the free exercise and establishment clauses of the First Amendment, a state cannot favor certain faiths or denominations over others. Her decision is rooted not only in religious freedom, but also in the separation of church and state—in the principle that states can't pick winners and losers because of how a religion practices its faith.
This looks to me like part of a long trend of religious groups seeking to benefit from government programs and sidestep essential worker protections in the process. It is important, as you say, that Justice Sotomayor breathes life into the establishment clause, which the court has shrunk down to virtually nothing. But it does feel like, in a larger sense, a continuation of a pretty dangerous trend. I find myself wondering how good it really is when the court's liberal wing joins on these cases.
Look, the trend line is clear. But the way Justice Sotomayor wrote this opinion really does do some good. She favorably cites key cases prohibiting school prayer and says they are still good law, and she got the whole court to sign onto that. This is just a few terms after Kennedy v. Bremerton , when the Supreme Court called those precedents into question. I think there is real value in Sotomayor shoring up the separation of church and state. Even if her colleagues won't hold fast to it in future cases, it tells lower courts that they cannot abandon this principle.
Let's continue that theme, because the court also unanimously tossed out a lawsuit on Thursday that Mexico had brought against US gun sellers. This opinion, Smith & Wesson v. Mexico , was written by Justice Elena Kagan. I bet you see a silver lining here too, don't you?
I do! Justice Kagan's opinion is very narrow: She held that Mexico did not plausibly allege that these American gun companies aided and abetted the smuggling of guns south of the border to Mexican cartels. That's a win for the gun companies, but it's not the big question that they wanted the court to decide. They asked the justices to establish sweeping immunity from lawsuit, even beyond what federal law already provides, by reinterpretinga statute as an absolute shield against civil liability for the entire gun industry. Kagan said the court did not need to answer that question because they could decide the case on much narrower grounds. It may be unfortunate that the suit got tossed, but it means gun sellers don't walk away with even broader protection against lawsuits than they had before.
I know this is the nature of being in the minority—you have to make these bargains. That's just the asymmetry of the world we live in. But it feels like another example of the court's liberals playing nicely, trying to eke out whatever little wins they can, turning the temperature down, all of which is important. It also feels like a game that only the losing team plays. And what if the actual game here is the legitimacy sweepstakes—how much the court gets to preen and say, “We're all best friends, we're unanimous all the time, what we're doing is law.”
Doesn't this approach dump an immense amount of credibility on those arguments when we're waiting for huge decisions on birthright citizenship and national injunctions, and the conservative majority is overturning precedent on the shadow docket ? Is this really the time to be shoring up the legitimacy of the court when only the losing team does it?
I would just ask: What is the alternative to this playbook that the liberals seem to be running? Is the alternative just bigger wins for the right and even more losses for the left? And the liberals become perennial dissenters complaining from the sidelines as the six conservatives march us ineluctably toward the death of American democracy?
I think it's easy for us on the outside to make the metacritique that “You guys are shoring up the legitimacy of a court that doesn't deserve legitimacy.” But the liberals don't have the luxury of looking at the metanarrative. They want to know: How can I avoid further insulating gun companies from lawsuits? How can I reestablish that church-state separation exists? How can I shore up a key precedent that protects LGBTQ people? If that's all you can snatch from a decision, it's still better than doing nothing, or facing a major defeat.
I will take your side on one piece of this, which is that there is some utility in being able to model that this is what doing a deal looks like. This is what centrism and humility look like. That's important when you have people at the center of the court who might show up for you on occasion. There is some utility in not burning it all down when it feels like, at least for Chief Justice John Roberts and Justice Amy Coney Barrett, these legitimacy questions are top of mind .
Absolutely. This is how the liberals build up goodwill with Roberts and Barrett for when they want to make a deal in a bigger case. When they need votes in a future case involving Trump's abuses of office, the liberals need to show Roberts and Barrett that they are sensitive and rational and absolutely willing to make a deal even when it cuts against their broader interests. They need to prove that they've got skin in the game—that they're making sacrifices, so maybe the other side should, too, when it's in the best interests of the institution and the country.
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