Shock! The U.S. Chamber of Commerce is treated substantially differently by today's federal court system than families with trans kids.
Chris Geidner at Law Dork:
Just before the close of business Tuesday, items appeared on two court dockets with which Law Dork readers are all too familiar that showed how far removed reality is from the ideal of “equal justice under law” engraved above the U.S. Supreme Court’s doors.
The items show — in shocking if predictable contrast — that the U.S. Court of Appeals for the Fifth Circuit is continuing to aggressively and explicitly encourage and protect forum-shopping for the right while federal courts in Alabama are continuing to aggressively investigate judicial concerns about alleged forum-shopping in LGBTQ civil rights litigation.
First on Tuesday, two Trump appointees issued a ruling ordering, yet again, that a conservative ideological challenge to a Biden administration rule must remain within their ultraconservative circuit.
Moments later, LGBTQ civil rights lawyers filed a notice that they had complied with the invasive order from another Trump appointee that he be allowed to review a document that they maintain is protected by attorney-client privilege as part of a two-year judge-shopping investigation.
This issue is not new — I wrote about this issue more generally on June 10 — but Tuesday’s news developments are particularly stark examples of the differences in result that are the consequences of these differences in treatment.
Heads, the Chamber wins
For conservative forces — here, the Chamber of Commerce fighting the Consumer Financial Protection Bureau’s credit card late fee rule — Judges Don Willett of the U.S. Court of Appeals for the Fifth Circuit has twice issued writs of mandamus to stop U.S. District Judge Mark Pittman, a fellow Trump appointee, from transferring the challenge to the federal court in D.C. Pittman, after the first go-round, harshly criticized the “landmines” laid by the Fifth Circuit.
In Tuesday’s order, Willett’s libertarianism was supported by Judge Kyle Duncan’s Christian nationalism to … protect business interests.
[...]
Tails, LGBTQ civil rights lawyers lose
A little more than a 10-hour drive across the South away — across Texas, Louisiana, and Mississippi and up Alabama — lawyers submitted a document to U.S. District Judge Liles Burke that they insist is protected by attorney-client privilege but that he has now twice ordered the LGBTQ civil rights lawyers to turn over more than two years into a judge-shopping investigation.
Burke himself prompted the investigation by questioning in a court order whether parties’ dismissal of two cases challenging the state’s new ban on gender-affirming care for minors and lawyers’ discussion that another challenge would be brought constituted judge-shopping.
Chris Geidner writes in Law Dork how right-wing interests get deferential treatment in various courts, especially the 5th Circuit Court.
The New York Red Bulls returned to midweek action as they hosted Charlotte FC at Sports Illustrated Stadium, and they had a strong performance against the North Carolina club, as they defeated them by a final score of four goals to two with a rotated squad.
The Red Bulls opened the scoring in the 14th minute, as they had the ball in the midfield. Peter Stroud, in the middle, passed the ball to…
And it arrives at the Supreme Court at an absolutely horrible time.
Ian Millhiser at Vox:
On Thursday, what could be the single most important transgender rights case in American history reached the Supreme Court.
West Virginia v. B.P.J. asks the Supreme Court to address whether any government discrimination against transgender people is inherently suspect under the Constitution, and thus must be subject to “heightened scrutiny” by the courts. If the Supreme Court reaches this question, it will be the justices’ first decision on whether the Constitution provides broad protection against anti-trans discrimination (although the Court has held that a federal statute prohibits such discrimination by employers).
The determination that a marginalized group is protected by this heightened scrutiny is one of the most consequential decisions the Supreme Court can make. While trans advocates could still lobby Congress and their state legislatures to pass trans rights legislation even if they lose the B.P.J. case, winning it would offer the immense power of being able to invoke the Constitution as a shield. B.P.J. could determine whether transgender people may demand equal treatment from each of the 50 states, even if those states are governed by anti-trans officials who enact discriminatory laws.
B.P.J. arises on the Court’s seemingly ever-growing shadow docket, a process that allows the Court to resolve cases on a very tight time frame — sometimes handing down a decision in days, and forgoing the months of briefing, argument, and deliberation that normally proceed a Supreme Court decision.
And that tight time frame could matter.
By sheer coincidence, another (hopefully less consequential) story involving the legal community’s approach to trans rights played out on the other side of the country the same day B.P.J. arrived at the Court.
Judge Kyle Duncan, a Trump appointee to a federal appeals court and an unusually outspoken opponent of transgender rights, delivered a talk at Stanford Law School where he was repeatedly heckled by students. The story has played out more or less the same way a zillion other debates about campus protests have played out, with Duncan demanding an apology (and receiving one from Stanford), and his allies claiming that “free speech is dead” and calling for a Stanford official to be fired.
Given the insularity of the elite legal world, it’s more than possible this incident will be on many of the justices’ minds as they read through the briefing in the B.P.J. case. Duncan was at Stanford as a guest of the campus chapter of the Federalist Society, the powerful conservative legal organization with close ties to most of the justices. And Duncan is a sitting federal judge, a profession that has historically been treated with obsequious regard by law schools, and one that the justices themselves belong to.
Duncan has also given at least two interviews to conservative media outlets, and the right-wing press provided sympathetic coverage of him all weekend.
So it’s easy to see why, in this moment when the Court is considering this high-stakes trans rights case, some of the justices could feel sympathy for a leading opponent of transgender rights. And why they might be inclined to view trans rights activists with suspicion.
There’s no reason why a minor story about a campus protest needs to impact the fate of transgender rights in the Supreme Court. The justices could simply decide to wave away the shadow docket motion that is currently before them, and wait to decide a case like B.P.J. until after it arrives on the Court’s regular docket through the ordinary, more deliberative process.
That wouldn’t guarantee the plaintiff in B.P.J. a win. It’s likely any trans rights plaintiff would already face an uphill battle in the current, very conservative Supreme Court. Republican appointees have a supermajority in this Court, at the same time that Republicans throughout the country are pushing legislation attacking transgender people.
[...]
In the best-case scenario for trans litigants, B.P.J. could set a baseline for transgender rights in much the same way that cases like Brown v. Board of Education (1954) established a legal baseline protecting against race discrimination. Brown did not end racism any more than B.P.J. can end transphobia. But a big victory for trans rights in B.P.J. would enlist the entire federal judiciary into the fight for transgender justice.
What does it mean that this case arose on the shadow docket?
Historically, the Supreme Court was very reluctant to issue orders second-guessing a lower court before an appeals court had issued its final decision on the case. Justices used to be so hostile to these sorts of requests that lawyers were reluctant to even make them. According to a November 2019 paper by University of Texas law professor Stephen Vladeck, “during the sixteen years of the George W. Bush and Obama Administrations, the Solicitor General filed a total of eight” Supreme Court applications seeking to stay a lower court’s decision — “averaging one every other Term.”
The Trump administration, however, abandoned this traditional reticence. As Vladeck wrote in his 2019 paper, Trump’s “Solicitor General has filed at least twenty-one applications for stays in the Supreme Court (including ten during the October 2018 Term alone).” And the conservative Court rewarded this behavior. Vladeck found that the Trump administration achieved a full or partial victory in about two-thirds of these cases.
This alternative pathway, where the justices sometimes express their views on a case much sooner than they would under the ordinary appellate process, was named the shadow docket by University of Chicago law professor William Baude in 2015.
Other conservative litigants have also had great success on the shadow docket, sometimes scoring major, precedent-setting decisions. In Roman Catholic Diocese of Brooklyn v. Cuomo (2020), for example, the Court handed down a decision on its shadow docket that effectively gutted 30 years of precedent establishing that people who object to a state law on religious grounds must follow it if it is a “neutral law of general applicability” — meaning that the law applies on equal terms to religious and non-religious people.
So the Court will have to decide just how quickly it wants to move in B.P.J. It could simply deny the state’s request (which was the ordinary practice in the pre-Trump years). It could signal to lower court judges that it is skeptical that B.P.J. will prevail by granting the request without much of an explanation. And there’s at least some chance that the Court could issue a major precedent-setting decision right away.
[...]
So what does any of this have to do with Stanford?
Kyle Duncan may be the most outspoken opponent of transgender rights within the federal government. He previously worked as general counsel to a leading Christian right law firm, and he litigated multiple cases seeking to restrict LGBTQ rights — including a case where he represented a school district seeking to prohibit a trans student from using the bathroom that aligns with his gender identity.
As a judge, Duncan authored a 2020 opinion where, after a transgender litigant requested that Duncan’s court refer to her using her proper pronouns, Duncan explained, at length, why he refuses to do so. Among other things, Duncan warned that, if he honored this litigant’s request, then he might also have to refer to some hypothetical future litigant using a more non-traditional pronoun. He even included a chart.
The West Virginia v. B.PJ. case could be a very big one for transgender rights in America, should SCOTUS hand down a decision.
Originally a Patreon exclusive, this special episode contains the prototype that eventually led to Undercooked Analysis. Recorded way back in March of 2014, this impromptu session has David and friends Ben Spiegel, Sean Holt, Ty Lucas and Kyle Duncan reading through "Jeff the Killer," and stumbling over what UCA originally tried to do: understand what it is that made this story and its namesake character so popular in the wider Creepypasta mythos.
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