Discrimination is discrimination is discrimination
It’s been nice to get some unanimous opinions lately. Given that we’re near the end of the term, some especially vigorous disagreements are sure to arise.
Discrimination is discrimination is discrimination
Surprising no one, the Court unanimously held in Ames v. Ohio Department of Youth Services that members of “majority” groups can’t be held to a higher standard than everyone else when bringing discrimination claims under our civil rights laws.
Marlean Ames, a public employee, alleged that she was demoted and denied a promotion because she’s straight. Under usual precedent, a plaintiff needs to offer enough evidence to support an inference of discrimination to get her claim past the courthouse gates. But the Sixth Circuit said Ames had to go further. Because she’s part of a majority group, she had to provide “background circumstances” suggesting discrimination.
Justice Jackson, writing for the Court, said that rule is flatly inconsistent with the statutory text and Supreme Court precedent. The Civil Rights Act protects individuals, not groups. That decision was unsurprising because even the government, Justice Jackson wrote, had “barely contest[ed] it.”
Justice Thomas, joined by Justice Gorsuch, wrote a concurring opinion to question the entire three-part framework courts use to evaluate employment discrimination claims—called the McDonnell Douglas test. That test requires plaintiffs to produce evidence supporting an inference of discrimination, which shifts the burden to the employer to articulate some legitimate, nondiscriminatory reason for the employment decision. The burden then shifts back to the plaintiff to show that the employer’s reason is a pretext for discrimination.
The pair wrote to say that such atextual judge-made rules prove hard to implement in practice and are inconsistent with the very civil rights laws they purport to implement. If presented with the opportunity, they’d be open to scrapping the test altogether. The text means what the text says.
If not proselytizing is your jam, the First Amendment still protects you
The Court also unanimously ruled in Catholic Charities Bureau v. Wisconsin Labor and Industry Review Commission that Wisconsin violated the First Amendment when it denied a Catholic charity a religious exemption—because it was too inclusive.
The State argued that the organization’s refusal to proselytize and its willingness to employ non-Catholics made it insufficiently religious. Justice Sotomayor wasn’t having it. A charity doesn’t lose its religious character by living out its values. Punishing a group for how it lives its faith is religious discrimination, plain and simple.
The decision doesn’t break much new ground, but it does reinforce a key point: The government shouldn’t be in the business of parsing religious doctrine.
Abundance is within our reach
In Seven County Infrastructure Coalition v. Eagle County, CO, the Court reined in the scope of environmental review under the National Environmental Policy Act (NEPA).
At issue was a rail project for transporting oil through Utah. Eagle County and several environmental coalitions tried to shut it down by arguing that despite providing thousands of pages of analysis about the environmental impacts of the rail project, the Surface Transportation Board had failed to consider the upstream impacts of increased drilling or downstream effects of increased oil usage. The Court rejected that demand, holding that NEPA requires a “reasonably close causal relationship”—not an open-ended, nationwide impact analysis.
Justice Kavanaugh, writing another unanimous opinion, emphasized that NEPA’s role is to “inform agency decisionmaking, not paralyze it.” (And certainly not to provide a blank check for opponents to block projects they don’t like.)
The decision is a welcome reminder that environmental laws shouldn’t be used as a regulatory cudgel to grind infrastructure—and energy development—to a halt. We could have an abundance of jobs, energy, food, and flourishing in this country… if the government would just let us.
But it’s a bit of a mixed bag for us fans of judicial engagement, because it relied on the fact that judges should defer to agencies’ determinations of what details are relevant in an EIS. “While NEPA requires an EIS to be ‘detailed,’” Justice Kavanaugh wrote, “and the meaning of ‘detailed’ is a legal question… what details need to be included in any given EIS is a factual determination for the agency.” I find that a bit befuddling. And I worry that though we’ve recently been experiencing a much-needed judicial check on the administrative state, opinions like this will walk that progress back.
‘You’re fired’
The Trump administration has asked the Court to pause a lower court ruling that blocks it from carrying out his plan to reduce the federal workforce. I’ve recently asked whether it should be so hard for the president to fire people within his own branch of government.
After President Trump issued an executive order asking agencies to prepare for large-scale reductions-in-force (RIFs), unions and nonprofits sued, claiming he can’t do that without congressional approval. There’s some disagreement between the president and the plaintiffs about exactly what the challenged order does. The president argues that his order is narrow and lawful, because it directs agencies to act within the confines of law and not to get rid of any aspects of agencies that are statutorily required by Congress. The president, he said, should be able to mandate what those agencies could already unilaterally do themselves. The plaintiffs, by contrast, tie his actions to a total reorganization of the executive branch, which they say he needs congressional approval for.
Funny—some of these same groups had no problem with President Biden sidestepping Congress to mandate vaccines, impose eviction moratoriums, or cancel student loans. Live by the executive pen, die by the executive pen. That being said, overseeing the very branch he heads seems to be more clearly within the president’s purview.
Double emergency docket wins for DOGE
DOGE (Department of Government Ethics) notched two emergency docket victories.
In the first, the Court said DOGE could access records from the Social Security Administration while the challengers’ lawsuit proceeds. Justice Jackson dissented, joined by Justice Sotomayor, echoing a theme they’ve often said when dissenting on the emergency docket: They don’t see the harm to government in having to wait a bit longer. Justice Kagan dissented without comment.
In the second, the Court ordered the DC Court of Appeals to reconsider a lower court ruling that forced DOGE to comply with a broad discovery order. The plaintiffs in the case had submitted a Freedom of Information Act request seeking certain documents, which invited the question of whether DOGE is an agency within the meaning of the Act. In order to answer that question, the plaintiffs then asked for (and the district court required disclosure of) documents related to intra–executive branch recommendations and whether those recommendations were followed.
The Supreme Court instructed the Court of Appeals to take a second look at that order while keeping in mind that “[a]ny inquiry into whether an entity is an agency for the purposes of the Freedom of Information Act cannot turn on the entity’s ability to persuade. Furthermore, separation of powers concerns counsel judicial deference and restraint in the context of discovery regarding internal Executive Branch communications.”
Both decisions hint at a broader trend: The Court is increasingly skeptical of judicial efforts to micromanage executive action via emergency orders—especially when those efforts seek to kneecap the president on a national scale.
Until next time…
Keep an eye out at SCOTUSblog for my first piece in a recurring series about Supreme Court dissents.
