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US Supreme Court ruling protects LGBT+ employees and ‘Dreamers’

By Louis Shankar

Jun 23, 2020


“Do you get the impression that the Supreme Court doesn’t like me?” tweeted, you guessed it, the President of the United States last Thursday, following the second Supreme Court ruling against Trump’s policy in three days.

It’s increasingly difficult to be surprised by anything that Trump tweets—or, indeed, says in any situation. His Twitter has long been unhinged, unnecessarily personal, and endlessly contradictory: but there’s something about this tweet in particular that deserves unpacking. Trump manages to make the decidedly political intensely personal.

First of all: what were the rulings? The first concerned LGBT+ employment rights, with the final judgement saying that existing federal law, which protects against discrimination based on sex, should be understood to include both sexuality and gender identity. In other words, it has just been announced that someone cannot be fired or discriminated against in the workplace simply for being lesbian, gay, bisexual or transgender, per the landmark 1964 Civil Rights Act.

Judge Neil Gorsuch, who was nominated to the court by Trump, wrote the majority opinion: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.”

The second ruling concerned Deferred Action for Childhood Arrivals (DACA), a longstanding programme that allows undocumented immigrants who were brought into the US as children the right to remain, without fear of deportation. The Trump administration has long tried to remove the rights of the 650,000 so-called ‘Dreamers’ and end DACA; the Supreme Court judged this termination unlawful.

This was the precise news that seemed to irk Trump, prompting the above tweet, given that it concerned his administration specifically. However, the ruling is not necessarily good news: while the decision to end DACA in this way was deemed “arbitrary and capricious,” the ruling was about whether proper procedure was followed—not whether or not the White House had the power to end DACA. Chief Justice John Roberts wrote in the majority opinion that “all parties agree that it may.”

Trump quickly changed his tune, telling a rally the following day, “People don’t understand, but we actually won on DACA yesterday.” He continued, “We actually won, because [the Court] basically said, ‘You won, but you have to come back and redo it.’ So we’re refiling it. Most people would say that we lost. We didn’t lose. We’re gonna refile it.”

Both rulings were somewhat surprising, particularly the civil rights case, which was won 6-3, with Gorsuch joined by Chief Justice Roberts, a notoriously conservative judge, and liberal stalwarts, Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

Since the appointment of accused-rapist Brett Kavanaugh in 2018, the Court has been increasingly conservative. Kavanaugh, a devoted conservative, replaced Anthony Kennedy, who was often the swing vote on 5-4 decisions during his tenure, including Obergefell v. Hodges, which legalised same-sex marriage across the US. Chief Justice Roberts, who presided over Trump’s trial in the Senate earlier this year—yes, that was this year!—dissented Obergefell v. Hodges, yet joined the majority opinion last week.

“This is a simple and profound victory for LGBT civil rights,” explained Suzanne B. Goldberg, a law professor at Columbia. “Many of us feared that the court was poised to gut sex discrimination protections and allow employers to discriminate based on sexual orientation and gender identity, yet it declined the federal government’s invitation to take that damaging path.” Many had been expecting bad news from this ruling, so scenes of surprise and elation played out across the country when the verdict was announced.

Not so in the White House, where this ruling might put a halt to plans to eliminate Obama-era regulations that prohibit discrimination by healthcare providers and insurers against transgender patients. This cruel and unnecessary announcement, made in the midst of Pride month, was widely decried by civil rights and LGBT+ activists internationally.

So why does Trump take these rulings so personally? The Supreme Court is, ostensibly, separate from the machinations of bipartisan politics; dissenting opinions often contradict White House policy. I’m not even American, let alone the President of the United States, and even I know that the Court is its own branch of government, separate yet equal to the presidential executive branch. In fact, the court is there as part of the system of checks and balances established in the Constitution to ensure no office has too much ‘uncontrolled’ power.

Perhaps this is precisely what upsets Trump. Or maybe he just needs to make everything about him. Even in the strictly bipartisan political landscape of the US, Trump needs to centre himself: to oppose any conservative dogma or Republican ideal is to stand against him, personally.

Given these views, what might another four years of Trump mean for the Supreme Court? At least two seats will likely come up for renewal in the next presidential term, given several justices’ old age and ailing health. Trump advisors would likely pick increasingly conservative and hardline judges to protect his administration’s legacy; long-standing decisions, such as Roe v. Wade, which legalised abortion nationwide, could easily be overturned by such a court.

This potential is an important debate point for the 2020 election: Supreme Court appointments are lifelong and give presidents the power to effectively influence the judiciary for decades. What damage could Trump do—just to make the Supreme Court “like” him?