"Well, you know, he's a bland, older white guy."

Says Adam Liptak about Justice Stephen Breyer. Liptak was asked, on the NYT "Daily" podcast — at 8:48 — why it is that Breyer is the Supreme Court Justice people have the least opinion about (according to a poll).

Breyer, we're told, took into account — in deciding when to leave the Court — a desire not to have his "legacy" undone by the person who replaces him, and that raised the question what is his legacy? Maybe the podcast listeners don't know. In an effort to enlighten them, Liptak began with the notion that Breyer is "a bland, older white guy."

Now, let's be clear. Liptak didn't say that because a person is male, old, and white he's bland. He piled "bland" onto the list of things that supposedly cause people not to have an idea of what Justice Breyer is about. But the suggestion is there: to be white is to be bland. Of course, Liptak isn't saying that white people are bland, only that people, seeing a white person, may get no further than to perceive him as bland.

I can see the argument that this perception is good. Let's begin, when we see a person, with a presumption of blandness. Nothing special about this person. A blank. We'll see if he does anything to distinguish himself. Until then: bland. And don't let that be white privilege. Give everyone this privilege. Until you know something about this individual, leave an open space. If they never put anything in that space — that space in your head — let them remain an enigma, nothing but potential. You do not know them, and maybe you never will.

Breyer will retire!

Big news! 

I'm reading the report in the NYT:

Justice Stephen G. Breyer, the senior member of the Supreme Court’s three-member liberal wing, will retire, two people familiar with the decision said, providing President Biden a chance to make good on his pledge to name a Black woman to the court.

Oh, so there's a "pledge" and he'll need to "make good" on it. 

ADDED: We've already got affirmative action on the Supreme Court's agenda this year as we move toward the elections, and if Biden fulfills this pledge, it will intensify the political theater. He already fulfilled a black-woman pledge in selecting his Vice President, and there's a fair amount of disappointment in her. (She's got worse poll numbers than he does.) But that doesn't mean he should violate his pledge. (I'm assuming it is, indeed, a pledge.) He should elevate an extraordinarily impressive black female judge, so that the political theater is highly supportive of this kind of selection process, and the resonance with the pending cases helps the pro-affirmative-action side win favor with the people. 

ALSO: At WaPo, Neal Katyal, the former Solicitor General and a former law clerk to Breyer, has an op-ed that was all ready to go: "Breyer’s act of listening will pave the way to a healthier democracy." I thought the "act of listening" was going to be the act of listening to people who were telling him he needed to retire to give Biden a chance to nominate somebody before Republicans took back the Senate, but no, it's about judging cases:

A deep part of his listening practice was to pay attention to experts in the field. He often said federal judges are not experts on national security, or the environment, or the economy, and that a deep part of wisdom was deference to expertise. Breyer’s path was to triple check his personal impulses, and particularly so if they conflicted with the views of true experts on the question before him.

That's pretty sober and lofty, but here's how Katyal brings it in for a landing:

Consider just how different that is from the political debates today, where extremist ideology has attacked things that should be noncontroversial, from wearing masks to taking vaccines, from addressing global warming to protecting voting rights.

America stands at a crossroads. On one path is more toxic extremism, the culmination of which we witnessed on Jan. 6. Despite that armed insurrection, the path remains just as seductive as ever to many.

Armed insurrection?

The other path is quieter and more difficult to practice. It is a path forged by Breyer: respect for others, reverence for the law, and most of all, a commitment to listening to and learning from one another.

You know, if you want to be quieter and reverent and committed to listening to and learning from one another, you wouldn't have written "armed insurrection." Or "toxic extremism." This gets my "civility bullshit" tag.

And why shouldn't we be able to debate wearing masks and the best way to protect voting rights and whether we're getting accurate reports of the science about vaccines and global warming? We are not deciding cases and dictating what other people must do, the way the Court does. We're exchanging opinion in the public forum, debating and expressing ourselves! 

That's not "toxic extremism." It's toxic extremism to say that it is!

AND: From right before the 1980 election: "Reagan Pledges He Would Name a Woman to the Supreme Court" (WaPo). In June 1981, Potter Stewart announced his retirement, and Reagan got his slot to fill. I had just graduated from law school, and I remember telling my father that I was excited about the first woman on the Supreme Court. My father scoffed and said he didn't expect Reagan to make good on his pledge. He confidently asserted that the nominee would be William French Smith.

"When the court considers the Harvard and UNC cases, it would do well to reject the 'diversity' rationale entirely, or at least subject it to much tougher standards of review...."

"As one expert in an amicus brief supporting the plaintiffs pointed out, the 'Hispanic' or 'Latino' category lumps together such varied groups as Argentinians, Cubans, Mexicans and immigrants from Spain. 'Asian Americans'' include racial and ethnic groups that cover more than half the world’s population, such as Chinese people, Indians and Filipinos, among others. Such distinct groups as Arab Americans, native-born white Protestants and recent immigrants from Bulgaria are all classified as 'white.' 'African American' combines native-born Black Americans with immigrants from Africa and the Caribbean. Needless to say, these groups have vastly different histories. Lumping them into a few crudely defined categories makes a mockery of the idea that universities are genuinely pursuing diversity as opposed to engaging in gross stereotyping. Perhaps even worse, the diversity rationale could be used to justify all kinds of racial and ethnic preferences.... For many schools, however, the diversity rationale for racial preferences is likely a smokescreen for the real purpose: compensating minority groups that are victims of long-standing discrimination, particularly African Americans. This justification, which has largely been rejected by the Supreme Court, is much more logically compelling than the diversity theory."

Writes Ilya Somin at "Supreme Court affirmative action cases challenging Harvard, UNC policies are overdue/The Harvard suit features extensive evidence that the school’s admissions system discriminates against Asian American applicants" (NBC News). 

Somin says he has has "considerable sympathy" for the alternative rationale, but it's hard to imagine the Supreme Court switching from diversity to compensation for past discrimination, which it rejected as a basis for affirmative action long ago (in the 1970s). 

[T]o my knowledge I was the only Russian Jewish immigrant in my class at Yale Law School. Would 'diversity' justify Yale using ethnic preferences to make sure there was another the following year?

The words "make sure" load that question, but I think — as someone who has served on my law school's admissions committee many times — that it would be perfectly fine to read an applicant's file, find yourself on the line between yes and no, see that this person is a Russian Jewish immigrant, and go with yes. And that yes would be based on what the current doctrine requires — a prediction that this person's contributions will be beneficial to the class as a whole. It would not be based on the idea that Russian Jewish immigrants have been discriminated against in the past. 

How could I possibly assess all the various harms of the past and funnel the urge to compensate into this one applicant? There's no expertise to defer to. With diversity, there is a notion, however hazy, that the school's file-readers have some special intuition about putting together a good student body and making the classroom lively and full of challenging viewpoints. There's a mystique, a magic, a black box that the Court can decide to leave closed. I know many of you are scoffing at that box. But the easiest answer is to leave it closed, not to move to another rationale for affirmative action.

"The Supreme Court agreed Monday to hear challenges to the admissions process at Harvard and the University of North Carolina..."

"... presenting the most serious threat in decades to the use of affirmative action by the nation's public and private colleges and universities.... In the latest case, groups backed by a longtime opponent of affirmative action, Edward Blum of Maine, sued Harvard and UNC in federal court, claiming that Harvard's undergraduate admissions system discriminated against Asian American students and that UNC's discriminated against both Asian American and white students.... The challengers in both cases, Students for Fair Admissions, urged the justices to overrule the court’s 2003 decision on affirmative action, which upheld the University of Michigan's use of race as a plus factor and served as a model for similar admissions programs nationwide...."

NBC News reports.

"How can the Washington Post say the court decisions on his vaccine or testing mandates were 'out of his control'?"

"Biden and his legal team are supposed to figure out a way to implement his policies that *won’t* get blocked by courts! Those court decisions didn’t happen at random; they happened because judges looked at what the administration did and decided that it didn’t comply with the law."

Writes my son John, at Facebook, commenting on "A year ago, Biden unveiled a 200-page plan to defeat covid. He has struggled to deliver on some key promises" (WaPo).

"Biden and his legal team are supposed to figure out a way to implement his policies that *won’t* get blocked by courts!" — We are all expected to pursue our goals and desires within the limits of the law. But we still can complain about the law that stands in our way and excuse our failure to achieve by pointing at this pesky law.

Sometimes you push the limits of the law and hope to convince judges. With a slightly different configuration of the Supreme Court, the vaccine mandate would have succeeded. Blaming the Court is worth doing to set up judicial appointments as a campaign issue.

And would the implementation of the vaccine mandate have served Biden's interests? Isn't he better off with it failing? He can point to it and say that he tried so hard and not be burdened with the realities of driving so many people out of employment, leaving businesses inadequately staffed, and imposing on the intimate personal bodily autonomy that his Party ordinarily celebrates. 

By the way: "Activists look ahead to what could be the 'last anniversary' for Roe" (NPR).

Speaking of the pending abortion case... did the Texas legislators "figure out a way to implement [their] policies that won’t get blocked by courts"? I'd say they deliberately overreached well-known law because they wanted to convince the Court to change it and, failing that, they wanted political credit for trying.

"Because the Court of Appeals concluded that President Trump’s claims [of executive privilege] would have failed even if he were the incumbent, his status as a former President necessarily made no difference to the court’s decision."

Said the Supreme Court, disposing of Trump v. Thompson with sublime efficiency. 

Justice Thomas would have granted what was an application for stay of mandate and injunction pending review.

Justice Kavanaugh wrote a statement that began:

The Court of Appeals suggested that a former President may not successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, at least if the current President does not support the privilege claim. As this Court’s order today makes clear, those portions of the Court of Appeals’ opinion were dicta and should not be considered binding precedent going forward....

It's clear... but he chooses to write about it anyway:

Without sufficient assurances of continuing confidentiality, Presidents and their advisers would be chilled from engaging in the full and frank deliberations upon which effective discharge of the President’s duties depends.

ADDED: Now that this decision has come out, I find myself very interested in finding out the specifics of what Trump said and did while the siege of the Capitol was under way. I could have accepted executive privilege for the reason Kavanaugh stated, but that isn't what's happening and I like the opportunity to find out this important information — after all we've been through, including the second impeachment. I hope it's a big letdown for Trump haters, but if it's not, it will be good to know.

"At oral argument, Justice Elena Kagan, one of the court's best questioners, sometimes... just shuts down... Still, her anger is often palpable, the color literally draining from her face. "

"And Justice Stephen Breyer on occasion just holds his head.... There isn't a lot of love lost among the court's six conservatives either.... If you watch carefully, you can see conservative eyes rolling from time to time.... [M]any of the conservatives are vying for the position of intellectual leader of the conservative majority, while the chief justice privately worries about going too far too fast. There are, in addition, some long and perhaps not so buried resentments among the conservatives. Alito on occasion barely conceals his disdain for Roberts.... In recent decades, the court has built its legitimacy on a certain degree of moderation — giving the left some of what it wanted and the right some of what it wanted. The left got gay rights and gay marriage, and some limits on presidential power exercised in the name of national security. And the right got expanded religious liberty and expanded free speech, which brought with it expanded corporate spending in elections.... But... the court's conservatives detest each other in the same way that the justices did in the 1940s. Back then, they couldn't agree on anything because, as [Noah] Feldman notes, 'they hated each other.' and even though they might have been able to to reach a consensus, they didn't 'because the hatred was so deep.' To cite just one example of how bad it was, Justice Felix Frankfurter called Justice William O. Douglas 'one of the completely evil men I have ever met.' And Douglas referred to the Austrian-born Frankfurter, who was Jewish, as 'Der Führer' and that was during World War ll."

Writes Nina Totenberg in "Supreme Court justices aren't 'scorpions,' but not happy campers either" (NPR). 

The "scorpion" quote refers to "9 scorpions in a bottle," a famous phrase that Totenberg doesn't give a source, perhaps because it's so famous, but perhaps because the usual attribution — to Oliver Wendell Holmes Jr. — seems incorrect. Noah Feldman's book "Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices Paperback" begins with the quote "The Supreme Court is nine scorpions in a bottle," attributed to Alexander Bickel, law clerk to Justice Felix Frankfurter, 1952–53, and drops this footnote:

"The Supreme Court on Thursday blocked the Biden administration from enforcing a vaccine-or-testing mandate for large employers..."

"... dealing a blow to a key element of the White House’s plan to address the pandemic as cases resulting from the Omicron variant are on the rise. But the court allowed a more modest mandate requiring health care workers at facilities receiving federal money to be vaccinated. The vote in the employer mandate case was 6 to 3, with liberal justices in dissent. The vote in the health care case was 5 to 4, with Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh joining the liberal justices to form a majority...."

The NYT reports.

Here are the opinions — NFIB v. OSHA and Biden v. Missouri.

From the OSHA case:

This is no “everyday exercise of federal power.” In re MCP No. 165, 20 F. 4th, at 272 (Sutton, C. J., dissenting). It is instead a significant encroachment into the lives—and health—of a vast number of employees. “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 6) (internal quotation marks omitted). There can be little doubt that OSHA’s mandate qualifies as an exercise of such authority. 

The question, then, is whether the Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures. See 29 U. S. C. §655(b) (directing the Secretary to set “occupational safety and health standards” (emphasis added)); §655(c)(1) (authorizing the Secretary to impose emergency temporary standards necessary to protect “employees” from grave danger in the workplace)....

From Biden v. Missouri:

[H]ealthcare facilities that wish to participate in Medicare and Medicaid have always been obligated to satisfy a host of conditions that address the safe and effective provision of healthcare.... [T]he Secretary routinely imposes conditions of participation that relate to the qualifications and duties of healthcare workers themselves.... Of course the vaccine mandate goes further than what the Secretary has done in the past to implement infection control. But he has never had to address an infection problem of this scale and scope before.... Vaccination requirements are a common feature of the provision of healthcare in America: Healthcare workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps, and rubella....

We accordingly conclude that the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19.

From the dissent in the Biden case. This is by Justice Thomas (joined by Justices Alito, Gorsuch, and Barrett):

“We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 6) (internal quotation marks omitted). And we expect Congress to use “exceedingly clear language if it wishes to significantly alter the balance between state and federal power.” Ibid. (internal quotation marks omitted). The omnibus rule is undoubtedly significant—it requires millions of healthcare workers to choose between losing their livelihoods and acquiescing to a vaccine they have rejected for months. Vaccine mandates also fall squarely within a State’s police power, see Zucht v. King, 260 U. S. 174, 176 (1922), and, until now, only rarely have been a tool of the Federal Government. If Congress had wanted to grant CMS authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly. It did not.

"Just as an MSNBC anchor is saying, 'We're also watching the Supreme Court. It could be a big day'"/"And just like with the Texas abortion cases, SCOTUS has faked us all out. No more opinions today"/"SCOTUS is definitely trolling us..."

 Commentary at SCOTUSblog just now.

"If the Chief Justice believes his political judgment is so exquisite, I invite him to resign, travel to Iowa, and get elected. I suspect voters will find his strange views no more compelling than do the principled justices on the Court."

Just a line from Tom Cotton I wanted to memorialize, quoted at Fox News.

It's of a piece with the sort of rhetoric about judges I've been reading for the last 50 years and more. I can't remember a time when I was able to understand anything about the Supreme Court when there wasn't a notion that what they are really doing is politics. And I saw "Impeach Earl Warren" billboards when I was first learning to read — back when I had no idea what "impeach" meant (something about a peach?) or who Earl Warren was.

So it's an old, old theme. But it plays well, and I think Tom Cotton found a spiffy way to do the phrasing. Instead of calling Roberts unprincipled, he points to the other justices — "the principled justices" — and imagines them finding the Chief's "views" "strange" and uncompelling. That's a nice variation on the theme.

And you've got to give Cotton credit for complexity. He addresses the Chief Justice and invites him to do something he's obviously not going to do, though it's more realistic and respectful than the common insults that tell people to do things — like go to hell or kiss my ass — that they're not going to do. "Invite" is polite, and running for President is very grand. But the idea is that if you ran for President with your agenda, you would lose. Cotton predicts the loss in an elegant comparison of voters to "principled justices," who, he suspects, would have the same low opinion of the Chief's ideas.

Now, the so-called "principled justices" oppose the Chief because he's finding something in the law that actually belongs in the political decisionmaking process, and if the Chief were to run for President, he would be taking these ideas to the place where the "principled justices" say they belong. So if the voters rejected these ideas, it would not be for the same reason the "principled justices" rejected them.

Ah! Now, I see the little flaw in Cotton's rhetoric! The only way the voters and the so-called "principled justices" could share the same opinion of the Chief Justice's "strange views" would be if the "principled justices" were thinking in political terms — in which case, they would be no more principled than the Chief Justice.

But if Tom Cotton is reading this — hi, Tom! — I know you already know how to get off that hook. You only said the voters and the "principled justices" would find the Chief's views to be equivalently compelling. It can still be the case that these views are not compelling in court, because they are not law but merely political, and that they are not compelling in the political arena, because people just don't like them.

"Reading Justice Gorsuch’s Bostock opinion, I was thrown back to the summer of 2017, when I found myself in a social gathering of a half dozen fellow progressives and one prominent conservative lawyer..."

"... with whom we were all friendly. It was a civil but increasingly pointed conversation as we pressed the lawyer, first gently and then more firmly, on whether he actually supported the Muslim travel ban and other actions of the Trump administration’s opening months that troubled the rest of us. He took the bait in good humor but finally, all but throwing up his hands, he cut the conversation off. 'Look,' he said. 'We got Gorsuch.' Yes, we did."

Writes Linda Greenhouse in "What Does ‘Sex’ Mean? The Supreme Court Answers/We’ll soon find out whether the court inflames the culture wars or cools them as its term winds down" (NYT).

The top-rated comment over there:

Forgive my cynicism, but I suspect that Roberts, being acutely aware of how politically biased his court appears, decided to select this case as a means of deflecting attention from the flood of conservative opinions yet to come. Having determined that they already lost the culture war on LGBT equality, they tossed progressives this bone, fully prepared to nullify it with a decision that it can be ignored by people with "sincerely held beliefs." They will point to this case as evidence of their neutrality.

Should have?

I'm giving this my "Althouse the pedant" tag, so stop now if you don't like where this is going. I'm reading the headline at The Washington Post, "Why Scalia should have loved the Supreme Court’s Title VII decision."

The man is dead. There's NOTHING he should have done.

Why not say "Why Scalia would have loved the Supreme Court’s Title VII decision"? I think I know why. The article is by George Conway. It's in WaPo. I'm going to say: They don't want to concede that Scalia would have joined the majority in this case, that he would have stuck to his principles (and that this case was truly an instance where these principles dictated the outcome the majority reached).

"The administration has been working to pursue a narrow definition of sex as biologically determined at birth, and to tailor its civil rights laws to meet it."

"Access to school bathrooms would be determined by biology, not gender identity. The military would no longer be open to transgender service members. Civil rights protections would not extend to transgender people in hospitals and ambulances. But the administration’s definition is now firmly at odds with how the court views 'sex' discrimination."

From "Supreme Court Expansion of Transgender Rights Undercuts Trump Restrictions/The ruling focused on employment discrimination, but legal scholars say its language could force expanded civil rights protections in education, health care, housing and other areas of daily life" (NYT).

Why is "sex" in quotes? I'd say the Court's case is also at odds with the effort to banish talk of sex and replace it with the concept of gender. I wonder, now will there be a new focus on sex?

Monday’s case was focused on employment law, a provision of the Civil Rights Act of 1964 known as Title VII. But Justice Neil M. Gorsuch’s opinion used language that is likely to apply to numerous areas of law where there is language preventing discrimination “because of sex” or “on the basis of sex.” Under the ruling, discrimination based on sexual orientation and gender identity ran afoul of the standard....

“They’ve ruled,” [President Trump] said. “I’ve read the decision, and some people were surprised, but they’ve ruled and we live with their decision.”

He's read the decision. Ha ha. Did anyone tell him it was 172 pages long before he concocted that lie? I assume it's a lie. And go ahead and bullshit that if you've read any of the opinion — a paragraph, say — you've "read the decision."

Anyway, I'm sure he doesn't mind the Supreme Court taking this pesky issue out of his hair.* "They’ve ruled and we live with their decision." If he really objected, he'd talk about how important it is to reelect him so he can appoint more Justices like Kavanaugh. Oh, but there is the complication that his #1 choice for the Supreme Court, Neil Gorsuch, wrote the opinion. He can't purport to have the power to control where the Court goes with all the legal issues.

But I don't think Trump is keen to hold back gay and transgender people. At most, he hopes to maintain the enthusiasm of the religious conservatives he needs to get reelected. But I don't think he is the slightest bit interested in reining in sexual — or gender — expression. Has he ever reined in his own?
______________________

* His orangified, poofed up, spray-spritzed hair.

"Today, we must decide whether an employer can fire someone simply for being homosexual or transgender."

"The answer is clear. 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. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbid.

Writes Justice Gorsuch, and Chief Justice Roberts is with the majority as well.

The answer is clear, because we've got 2 of the conservative justices joining the liberals. Nice work!

I'm reading the live blogging at SCOTUSblog.

Here's the PDF of the opinion. 172 pages. SCOTUSblog explains:

Alito has a long dissent with at least 4 appendixes, Appendix D is full of images of government forms....

kavanaugh [dissenting] ends with: "Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. 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. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII. I therefore must respectfully dissent from the Court's judgement. "

ADDED: From Alito's dissenting opinion, we see how much everyone pays obeisance to Justice Scalia:

The Court tries to convince readers that it is merely enforcing the terms of the statute, but  that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (emphasis added). If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation––not to mention gender identity, a concept that was essentially unknown at the time.

The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society. See A. Scalia, A Matter of Interpretation 22 (1997). If the Court finds it appropriate to adopt this theory, it should own up to what it is doing.

Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964.

I understand your argument, but right now, I am busy applauding.

ALSO: This does help Trump, of course.

PLUS: Here's something from the Gorsuch majority opinion:

By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex....

We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a “canon of donut holes,” in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception. Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. And that is exactly how this Court has always approached Title VII. “Sexual harassment” is conceptually distinct from sex discrimination, but it can fall within Title VII’s sweep. Oncale, 523 U. S., at 79–80. Same with “motherhood discrimination.” See Phillips, 400 U. S., at 544. Would the employers have us reverse those cases on the theory that Congress could have spoken to those problems more specifically? Of course not. As enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.

"Supreme Court unanimously reverses 'Bridgegate' convictions."

Fox News reports:

The court recognized that the lane closures, known commonly as "Bridgegate," were done as political payback against the mayor of Fort Lee, N.J. for not supporting the reelection campaign of then-Governor Chris Christie. The problem, the court pointed out, is that this is not a violation of the statutes under which the defendants were charged.

"The question presented is whether the defendants committed property fraud. The evidence the jury heard no doubt shows wrongdoing—deception, corruption, abuse of power," Justice Elena Kagan wrote in the court's unanimous opinion. "But the federal fraud statutes at issue do not criminalize all such conduct."

ADDED: Here's the opinion — Kelly v. United States.

AND: An excerpt from the opinion:

Federal prosecutors may not use property fraud statutes to “set[ ] standards of disclosure and good government for local and state officials.”... Much of governance involves (as it did here) regulatory choice. If U. S. Attorneys could prosecute as property fraud every lie a state or local official tells in making such a decision, the result would be... “a sweeping expansion of federal criminal jurisdiction.”... In effect, the Federal Government could use the criminal law to enforce (its view of ) integrity in broad swaths of state and local policymaking. The property fraud statutes do not countenance that outcome. They do not “proscribe[] schemes to defraud citizens of their intangible rights to honest and impartial government.”... They bar only schemes for obtaining property....

[N]ot every corrupt act by state or local officials is a federal crime. Because the scheme here did not aim to obtain money or property, Baroni and Kelly could not have violated the federal-program fraud or wire fraud laws....

ALSO: Professor Tribe reacts on Twitter: "Congress: let’s amend those statutes!"

That is, he wants the federal prosecutors to be able — in Kagan's words — to "use the criminal law to enforce (its view of ) integrity in broad swaths of state and local policymaking."

With oral argument by telephone and the Justices subjected to a protocol of asking their questions in order of seniority, the long-silent Justice Thomas asked 2 questions.

Thomas has been on the Court longer than any of the Justices, but the Chief Justice is regarded as first in seniority. That makes Thomas second in seniority, and therefore the second to have the opportunity to speak under this new approach.

I'm reading the report at Fox News, which notes that Thomas had, before this morning, only spoken twice at oral argument since 2006.

Thomas's questions today were about whether Booking.com could trademark "Booking.com": "Could Booking acquire an 800 number that's a vanity number, 1-800-booking for example, that is similar to 1-800-plumbing, which is a registered mark?... I'd like you to compare this to Goodyear.... In Goodyear, you had a generic term, but you also had an added term, such as company or inc, which any company could use. With Booking here there could only be one domain address dot com, so this would seem to be more analogous to the 1-800 numbers which are also individualized."

The new approach is much more polite and orderly. Obviously, the usual approach of Justices breaking in and attempting to dominate would be horrible on a telephone conference call. Maybe this experiment in order will affect how the Justices go forward with their courtroom theatrics if and when the social distancing ends.

"On Monday, the court will, for the first time, allow the news media to provide audio coverage of its oral arguments as they happen...."

Writes Bruce Collins, the general counsel for C-SPAN, at WaPo:

Our network, C-SPAN, has long argued for greater public accessibility to the court and welcomes this development.... In 1988, we made our first formal request to then-Chief Justice William H. Rehnquist for camera access to the court’s oral arguments....

Rehnquist agreed to let a coalition of more than 15 news organizations, including C-SPAN, conduct a demonstration in the chamber of how a two-camera setup could unobtrusively provide full coverage of oral arguments. Three justices, including the chief, sat at the bench while a lawyer for our media group took questions from the justices about the technology — just like an oral argument. We thought the demonstration went very well. Then, nothing....

Now, the court is giving the public live access to its arguments for the month of May....  The court’s move toward greater transparency should continue after the pandemic abates — and once the justices have become comfortable with live access, adding video coverage is the next logical step.

"A comprehensive new study from two law students at Yale shows that routinely granting argument time to the solicitor general is a recent and curious phenomenon."

"The study asks the provocative question of whether giving the solicitor general this preferred position makes any sense. 'What we’re asking for is really for the court just to apply the same standard to all amici, whether they’re from the solicitor general’s office or not,' said Darcy Covert, who conducted the study with A.J. Wang. 'In cases where the connection to the federal government is particularly tenuous and the motivation for the solicitor general entering the case may be ideological, in those cases he certainly shouldn’t be getting oral arguments.'... Starting in 1988, though, the office’s success rate started to rise, reaching almost 100 percent. From the beginning of the term that started in 2010 through the end of the one that began in 2017, the court granted just eight of 26 motions for argument time from amici other than the solicitor general, the study found. During that same time, the court granted 252 of 253 such motions from the solicitor general."

From "The Supreme Court Has a Special ‘Friend’: The Justice Department/A new study questions the court’s practice of automatically granting argument time to the solicitor general as a 'friend of the court'" by Adam Liptak (NYT).

ADDED: The occasion for paying attention to this topic seems to be the Solicitor General's argument in an abortion case last week. The NYT article begins with a statement about that case — there were 70 amici who submitted briefs in that case but only the Solicitor General got to make an oral argument to the Justices (who may delegate reading these non-party briefs to their law clerks). Later, the article notes that the federal interest in this case about the constitutionality of a state law is "not obvious." The SG only offered to provide "the federal perspective":

The motion noted that the solicitor general’s office had taken part in arguments at the last big abortion case, during the Obama administration in 2016, but it neglected to say that it had supported abortion rights in that case. In last week’s argument, Jeffrey B. Wall, a deputy solicitor general, argued in favor of a state law restricting abortions. If he was offering “the federal perspective,” that perspective had shifted with a change in administrations.

And, I suspect, the NYT perspective on routinely granting the SG oral argument time has also shifted.

It seems to me that it's much better to routinely grant the SG's request than to base the decision on which side the SG supports.