In setting up the federal judiciary, the Framers wanted to separate the judiciary from politics to a certain degree. By giving judges and justices an unlimited term, judges would be free from having to decide cases on what is currently popular. Not that the courts would be absolutely immune from politics, but the influence of politics on the courts would be that elections to the “political” branches would be in the choice of new judges and justices to fill vacancies. The courts would be “conservative” in the sense of reflecting the values of the time at which judges or justices were appointed with a gradual change reflecting changes in those values over time through the appointment of new judges and justices. (On the Supreme Court, nine of seventeen Chief Justices served more than a decade, and thirteen of seventeen served more than six years. Of the Associate Justices sixty-eight of one hundred have served more than ten years, and another thirteen have served more than six years.)
The fact that federal judges do not have to stand for election does not mean that judges are not political or aware of politics. To ask that judges not view close legal issues through a certain political philosophy and that judges not be aware of the potential impact of decisions on elections is asking too much. However, the Supreme Court wants the public to perceive that they are above politics and would prefer that the Supreme Court rank somewhat low on the list of important issues in any election. This desire to “lay low” has been reflected in pushing off the arguments on the most controversial cases until after the election (or even later for cases that might currently reflect a 4-4 split). Even in terms of which cases are being granted for review later this year, the Supreme Court was avoiding cases that were likely to generate headlines. That changed yesterday when the Supreme Court issued its order reflecting which cases it had just accepted for full review. While none of the cases on the list are surprises in terms of the Supreme Court granting review, two of the cases are highly controversial — one dealing with transgender rights and the other with sex offenders and the First Amendment — and most expected the Supreme Court to push a decision on reviewing those two cases until after the election, particularly with the election controlling who gets to fill the current vacancy on the Supreme Court.
The biggest of the two cases in Gloucester County School Board vs. G.G. — the transgender bathroom case. The basic facts of the case is that current federal regulations create an exception to Title IX (barring gender discrimination in education) to permit schools to have separate bathrooms for boys and girls, but the regulations do not define who is a boy and who is a girl. The School Board believes that gender should be defined by genetic birth gender. G.G. believes that gender should be defined based on the gender with which the student identifies. This issue is new and the Department of Justice and the Department of Education had not established any position on this issue before G.G. filed a complaint. The federal government in a guidance letter took G.G.’s position, and the Fourth Circuit — based on the government’s interpretation of the regulation — sided with G.G.
The school board’s petition raised three issues. The first issue sought to have the court reconsider its doctrine deferring to the government’s interpretation of its own regulations. (The Supreme Court has established two types of deference to administrative agencies. The first, called “Chevron” deference based on the case that established the principle, assumes that regulations are valid if the statute is ambiguous on the issue addressed by the regulation. The second, called “Auer” deference, again after the case that established the principle, assumes that a government agency’s interpretation of its own regulations is accurate if the regulation is ambiguous. The Supreme Court declined to address this issue.
The second issue contends that Auer deference should not apply if the agency first adopts that interpretation while a case is pending. To some degree, this argument has some appeal. The government should not be able to switch between two interpretations of a regulation depending upon which interpretation benefits the government in a particular case. It is entirely possible that — if the vacancy is not filled by the time that this case is argued — the Supreme Court could reverse on this issue, perhaps creating guidance on the standards governing when Auer deference should apply to a new regulation and let the Fourth Circuit sort out whether under these new standards Auer deference should apply.
The third issue asks the Supreme Court to decide what the regulation actually means — i.e. is the regulation ambiguous enough for Auer deference to potentially apply or is there a clear meaning; if there is no clear meaning, what is the best reading without Auer deference. The Fourth Circuit treated the regulation as ambiguous enough for Auer deference to apply, treating gender as a fluid concept under current understanding with multiple alternative definitions. While LBGT activists would prefer a holding that gender as used in the regulation is based on self-identification that seems unlikely.
It’s hard to say what the Supreme Court thinks about the two issues on which it granted review. The second issue is one that does not have a strict liberal-conservative split. The party in power today may be out of power in the future. As such, it is possible for the government’s position on an issue to flip overnight. While regulations have to undergo an extensive drafting and comment period before they can be changed, interpretations do not. Given that drafting process, the meaning of a regulation should not change just because of an election result. As such, what type of reflective consideration is necessary before an interpretation gains deference is a tricky question. Furthermore, sometimes a new complaint or case raises a novel issue. Should the novelty of an issue prevent the agency from reaching a consensus position on the issue that merits deference, assuming the other criteria for deference are met? Does the grant at this time mean that both liberals and conservatives are willing to gamble on the election result, or have enough justices (it only takes four to grant) think that they are sure of the results and believe that their best chance to get a decision that they like is by taking these issues now.
The other case — Packingham vs. North Carolina — is technically a First Amendment case. It could easily be an 8-0 (9-0 if the vacancy is filled in time) decision. The controversy comes from the subject of the potentially unconstitutional restriction on speech — registered sex offenders. The statute in question prohibits registered sex offenders from accessing a “commercial social networking website” if children can become members or maintain a personal webpage on that website.” To qualify as a “commercial social networking website,” the website has to meet three criteria: 1) the operator of the website derives revenue from some source (including both membership fees and advertising) from the operation of the website; 2) facilitates the social introduction of people for the purposes of friendship, meeting, or “information exchanges”; and 3) allows users to create webpages or personal profiles that contain certain information like the name/nickname of the user, photographs of the user, other personal information, and links to friends or associates of the user.
The definition of a commercial social networking website is very broad. A lot of websites meet the first criteria. Even this website has advertising on it; and most users could only guess at whether a site meets the first criteria. Again, a lot of websites fit the second meeting. An argument could be made that this website facilitates the social introduction of people for the purposes of “information exchanges.” The third criteria is unclear how many of the types of personal information must be postable. My hunch says that this website does not meet the third criteria, but I am not sure.
The fact that it is unclear if this website qualifies as a “commercial social networking website” indicates one of the two problems with the North Carolina statute. The first is that, while it is clear that a Facebook-type website would meet the definition, it is unclear whether other websites do, creating a “chilling effect” that might infringe on core First Amendment speech like the political speech on this website. The second is that registered sex offenders includes both those who committed offenses against adults and those who committed offenses against children. While “adult” sex offenders are not nice people, they are not at high risk to commit offenses against children. While there is evidentiary support for the need to keep child sexual offenders from websites that allow one-on-one interaction with children, that support does not exist for keeping adult offenders off of those websites.
If these two grants do not get buried in the election news, they could refocus attention on the fact that control of the Supreme Court is at issue in this election. It has been over 40 years since there has been a majority on the Supreme Court appointed by a Democratic President. Those 40 years have seen repeated attempts by that Republican-majority to undermine civil rights and campaign finance laws to such an extent that we could have a long list of nominees for the worst campaign finance decisions (Citizens United is not even in the top five of my list) and the worst civil rights decision (Shelby County is tops in my list but there are a lot of other contenders) of the past half century. Victory on November 8th matters, and it will matter very quickly with one current vacancy to fill and the potential for several more over the next four years.