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But here’s the thing: The court indicated on Monday that it is not going to do that. Hopkins.”The difference between the two approaches to the case is clear.The answer to Alliance Defending Freedom’s first question is obviously “no” — gender identity wasn’t on the screen for Congress or for most of society in 1964.
So something else is clear about Monday’s order: If the court didn’t make a snap judgment, neither should we when it comes to understanding what just happened and what might come next.But I believe that there was an extended negotiation among the justices, aimed at crafting questions that would open up the case rather than skew it in the employer’s direction.I’m reminded of something that happened a quarter-century ago when another potential landmark case, Planned Parenthood v. The petition was filed in late 1991 by abortion-rights advocates who believed that the court, following the retirements of its leading liberal justices, was about to overturn Roe v. The advocates’ calculation was that if this was going to be the outcome, it would be better for it to happen quickly and decisively, in time for the 1992 presidential election to become a referendum on the right to abortion and to awaken what polls showed to be a large silent majority favoring abortion rights.This is the type of division over the core meaning of a federal statute that the Supreme Court views as its obligation to resolve.While the court granted review in both cases, it has consolidated them for a single one-hour argument, probably in November and probably on the same day as the transgender case. I offer my analysis less as a prediction than a caution against jumping to conclusions. He is one of the judiciary’s more prominent conservatives and a judge whose opinions get the attention of conservatives on the Supreme Court.I was surprised to see predictions of doom being offered by progressive court watchers.“The absolute worst case scenario,” Ian Millhiser warned on Think Progress.As I later learned from internal court correspondence when I was writing a biography of Justice Harry Blackmun, the author of Roe v.Wade, the instigator of this change was Justice David Souter, who said he wanted to rephrase the question “in such a way as to overruling Roe.” Justice Souter, who was then one of two justices recently appointed by President George H. Bush, went on to provide a crucial vote as one of the five justices who preserved the right to abortion.The court’s rephrased question makes it clear that the justices read Price Waterhouse as encompassing a broad view of stereotyping, well beyond the dress code issue.That was the view taken by the United States Court of Appeals for the Sixth Circuit in its ruling on behalf of Ms. By discriminating against a transgender employee, the appeals court said, an employer is necessarily “imposing its stereotypical notions of how sexual organs and gender identity ought to align.”I have no inside information about what went on at the court during the prolonged consideration of this case.