One of the most respected constitutional law scholars of the 20th century, the late Paul Freund, once said the U.S. Supreme Court “should never be influenced by the weather of the day but inevitably they will be influenced by the climate of the era.”
In public interviews, Justice Ruth Bader Ginsburg has referred to that quotation when asked about her success litigating sex discrimination cases in the 1970s with the American Civil Liberties Union. She also recalled Freund's statement shortly after the Supreme Court upheld same-sex marriage in 2015.
What does “climate of the era” or “climate of the age” mean? Nearly 50 years ago, Freund suggested it is one of “increasing sensitivity toward human rights” and “large conceptions of equality under the law.”
The Justices may have been influenced to a degree by the climate of the era in their two most surprising rulings of the term thus far: the 6-3 decision barring workplace discrimination based on sexual orientation and gender identity, and the 5-4 decision finding that the Trump Administration’s effort to eliminate the temporary delay in the deportation of so-called “Dreamers” violated federal law.
There has been considerable public sympathy for the plight of the Dreamers, children brought to this country by their undocumented parents. Many are now young adults who are contributing to society in many ways and have no memory of their native countries, nor their languages or customs. They have lived in fear of deportation for a number of years now. The delayed deportation program—a two-year renewable delay if certain strict requirements are met—has been in effect since 2012. Much has been written about their plight.
In the Dreamers case, Chief Justice John G. Roberts Jr. seemed to be leaning in favor of the administration during oral arguments last November. But after arguments, a remarkable supplemental brief was filed by lawyers for one group of Dreamers in which it reported how more than 20,000 of these young people were on the front-lines of the Covid-19 fight, as doctors, nurses and other health care workers and also as “essential” workers in grocery stores, pharmacies and other essential businesses.
Was Roberts influenced by that brief and by the climate of sympathy for Dreamers? Perhaps. But even if he were, that doesn’t mean his majority opinion wasn't based on law. There was enough law in his opinion to thrill administrative law nerds.
That post-argument brief hammered home a missing critical factor in the Trump administration's effort to end the program. The administration, Roberts, found failed to consider the reliance built up by the program in particular, and other factors that agencies must address under the Administrative Procedure Act. The administration offered only one justification—its belief that the program was illegal. That was not sufficient, according to Roberts.
Here is the “money quote” from Roberts' opinion: “Justice [Oliver Wendell Holmes Jr.] famously wrote that ‘[m]en must turn square corners when they deal with the Government,’” said Roberts, citing Rock Island, A. & L. R. Co. v. United States (1920). “But it is also true, particularly when so much is at stake, that 'the Government should turn square corners in dealing with the people,’” he added, citing Justice Hugo Black’s dissent in St. Regis Paper Co. v. United States (1961). The Trump administration failed to do so, Roberts said.
An even stronger case for the “climate of the era” influencing the Supreme Court might be made for the LGBT workplace discrimination case. An “increasing sensitivity to human rights” and the “large conceptions of equality under law” are reflected in the nation's evolving view of the LGBT community and the Supreme Court's handful of rulings affecting it.
Even Justice Brett Kavanaugh who dissented from the workplace discrimination decision acknowledged the larger picture, the climate, of what has been happening in America. “Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law,” he wrote. “They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.”
But like the Dreamers decision, the LGBT decision was grounded in law as well. Kavanaugh and the dissenters disagreed with Justice Neil Gorsuch and the majority's interpretation of the meaning of “because of sex” in the workplace discrimination law, Title VII, and whether it included sexual orientation and gender identity. In all three cases before the court, employers fired long-time employees shortly after the employees revealed they were homosexual or transsexual.
The majority and the dissenters started in the same place as “textualists”: What was the meaning of the words when Congress enacted the law in 1964? But they ended in different places. Kavanaugh and Justices Samuel Alito and Clarence Thomas said sexual orientation and gender identity were never on the table in 1964, and, in fact, some conduct by gays was considered criminal at the time. Gorsuch and the majority, however, saw broad language. Congress never envisioned the law protecting male-on-male sexual harassment or discrimination against female workers who were mothers, but the Supreme Court in earlier decisions held that Title VII covered those situations.
Gorsuch had a money quote as well: “Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extra-textual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”
No one really knows what each Justice was thinking as he or she worked through the law to reach a decision in these two cases. We do know they are not blank slates when facing each case that comes before them. They bring to judging their judicial philosophies, ideology, experiences in law and life, and perhaps as Freund suggested, the climate of the era.
This week may be the final week of the term. A number of major decisions may be issued in the next few days. Watch closely.
Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.
