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EXCLUSIVE: Anger, leaks and tensions at the Supreme Court during the LGBTQ rights case

July 28, 2020. Summarized by summa-bot.

The court did not initally decide to protect transgender employees when they expanded civil rights protections to gay and lesbian workers.

(CNN)When the Supreme Court extended the 1964 Civil Rights Act to gay and lesbian workers in a landmark June ruling, the justices also protected transgender employees.

In their private conference room in October with only the nine and no law clerks, the justices debated whether and how to provide the same anti-bias coverage for 1 million transgender workers, according to multiple sources familiar with the inner workings of the court.

That early vote, supported by Chief Justice John Roberts and Justice Neil Gorsuch, and the wrangling that eventually led to a broad decision in the groundbreaking case are among the new details in CNN's exclusive four-part series on the Supreme Court's historic 2019-2020 term.

Conservative Gorsuch, President Donald Trump's first nominee to the Supreme Court, held the key to the decision that ultimately declared the Civil Rights Act prohibits employers from denying jobs or promotions to gay, lesbian and transgender workers.

And as Gorsuch devised his legal rationale, liberal Justice Elena Kagan appealed in public and private to his interest in sticking close to the text of laws.

On the other side, a series of scathing draft dissents by conservative Justice Samuel Alito that attacked Gorsuch's logic failed to dissuade any of the six justices in the majority, who did not waver through the final months of internal deliberations.

In those cases, a majority of justices agreed early on that Title VII of the Civil Rights Act, which prohibits bias "because of" sex, must include gay and lesbian workers who face discrimination based on sexual orientation.

What was not previously known in the LGBTQ disputes is that the justices voted first to affirm a lower court ruling that had favored a gay man fired from his job as a skydiving instructor in New York and to reverse a lower court decision against a gay man removed from his post as a county child-services coordinator in Georgia.

(One of the most significant powers of the chief justice is deciding who gets to write the court's majority opinion in a case.

While Gorsuch expressed concern at oral arguments about "massive social upheaval" if the justices ruled in favor of broad LGBTQ worker protections, he has previously asserted that a true textualist should not concentrate on whether an outcome would be good or bad.

Until these cases, Roberts had never signed on to a gay-rights decision in a case argued before the justices, and he had bitterly dissented in 2015 when the justices announced a fundamental right to same-sex marriage.

As the justices in the majority began working out how to construe the reach of Title VII's plain-language protections against sex discrimination, they had to address how it applied to gay as well as transgender workers, specifically Stephens, who had been fired from her job in Michigan.

The most substantive part of the court's decision-making process comes as justices crafting the opinions for the majority and the dissent work out their legal rationales in drafts.

But in this high-stakes case, word that Gorsuch and Roberts had voted with the four justices on the left began leaking out in November, a rare breach of confidentiality during the drafting process at the secrecy-obsessed institution.

The Wall Street Journal published an editorial on November 21 disapproving of the possible developments, headlined, "The Supreme Court's Textualism Test: Kagan tries to lure Gorsuch and Roberts off the Scalia method. " (Justice Antonin Scalia, a conservative icon who died in 2016, was known for his interpretive approach tied to the text of laws. )

Gorsuch became the author of the court's opinion in that case only after justices had worked out their legal rationales months later.

The Ramos development did not change the outcome or timing of the LGBTQ decision, but Gorsuch's leading role in the Ramos case was enough to fuel more questions for those searching for clues to which justice was writing the momentous LGBTQ decision.

The six-justice majority held to its view that Title VII covered gay and transgender workers without exception.

None of the liberal justices nor Roberts was writing a separate opinion, as often happens in contentious cases.

by summa-bot

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