The Inexplicable 'Courtesy' That Could Elect Donald Trump

By Ian Millhiser, ThinkProgress

07 August 16

n its surface, Gloucester County School Board v. G.G. has very little to do with voting rights. It's a case about the right of transgender students to use a bathroom that aligns with their gender identity, wrapped up in an equally important question of whether conservatives will succeed in weakening the executive branch's power to shape policy during an age of congressional dysfunction.

But Justice Stephen Breyer, a Clinton appointee who normally votes with the Court's liberal bloc, cast a strange and unexpected vote in the G.G. case. Though the immediate impact of that vote is likely to be temporary, Breyer's decision to cast this one vote raises serious questions about how the Court will behave in the lead-up to the 2016 election.

Court watchers had largely assumed that a raft of lower court victories by voting rights advocates were safe from the Supreme Court now that conservatives no longer enjoy a majority on that Court. Breyer's vote casts doubt upon that assumption. And, if Breyer behaves in voting rights cases in the same way that he did in the G.G. case, he could throw close elections to the Republicans this November.

Courteous Discrimination

To explain, the "G.G." in the G.G. case is Gavin Grimm, a trans high school senior who challenged his school's discriminatory bathroom policy. Grimm won in a federal appeals court, and the school district sought a stay of that decision from the Supreme Court. Although Breyer opposed granting the stay, he nonetheless voted with his four conservative colleagues to grant it, explaining that he did so "as a courtesy" that "will preserve the status quo (as of the time the Court of Appeals made its decision) until the Court considers the forthcoming petition" asking the justices to hear this case on the merits.

Such "courtesy" votes are fairly common in death penalty cases due to a quirk of the Supreme Court's rules. It takes four justices to agree to hear a case, but five to grant a stay. To prevent a situation where the Court announces that it will hear a capital case, only to have that case become moot after the inmate at issue in that case is executed, a fifth justice often grants a courtesy vote to stay that execution while the case is pending.

Courtesy votes in death penalty cases, in other words, acknowledge the fact that death is irreversible. If an individual is executed, and the Court later decides that this execution is illegal, not even the Supreme Court of the United States has the power to bring this individual back to life.

Nothing about Gavin Grimm's case is analogous to the irreversible machinery of death. When Grimm returns to school this fall, he will either be afforded his full measure of civil rights, or he won't be. If the school district allows him to use the men's room, and then a Supreme Court decision holds that the district is free to lock Grimm out of that bathroom, then there is nothing preventing the school district from doing so in the future.

Indeed, the irony of Breyer's courtesy vote is that it may bring about the very circumstance that these votes are supposed to prevent. Again, courtesy votes are cast in death penalty cases to prevent an irreversible event from frustrating the Court's jurisdiction over a case. The stay that Breyer voted to grant will remain in effect until "the issuance of the judgment of this Court," if the Supreme Court agrees to hear this case. But the Court may not issue its judgment until late June, weeks after Grimm will have graduated from high school.

In extending "courtesy" to his conservative colleagues, in other words, Breyer may have taken away Grimm's one shot to have his rights vindicated.

Courteous Disenfranchisement

Which brings us back to the issue of voting rights. In the wake of the Supreme Court's 2008 decision in Crawford v. Marion County Election Board, which rejected a challenge to a common form of voter suppression law, laws restricting the right to vote have proliferated. Often, these laws are justified as necessary to combat in-person voter fraud, a phenomenon only slightly more common than unicorns and elves, but their real effect is to disenfranchise voters who tend to prefer Democrats over Republicans.

According to one study, for example, strict voter ID laws cause Democratic turnout to drop "by an estimated 8.8 percentage points in general election," as compared to only 3.6 percentage points for Republicans. More conservative estimates indicate that these laws add more than a full percentage point to Republican candidates' margin over their Democratic opponents.

In the final weeks of July, several lower courts handed down decisions halting many of these voter suppression laws, including an appeals court's decision striking down major provisions of North Carolina's omnibus voter suppression law on the grounds that it was enacted for the very purpose of reducing African-American turnout. This and similar decisions by federal appeals courts were widely viewed as safe from Supreme Court review. Conservatives no longer have the votes to reverse them.

But Breyer's vote in G.G. raises serious doubts about whether these pro-voting rights decisions are safe or not. Sure, Breyer is likely to vote to strike these laws down on the merits - just as he is likely to eventually side with Gavin Grimm if the Court decides to give G.G. a full hearing. But an eventual vote on the merits won't be enough to stop these voter suppression laws from impacting the 2016 election if Breyer shows the same "courtesy" in voting rights cases that he did in G.G..

Indeed, the potential for irreversible harm is even greater in the voting rights cases than it is in G.G. Though resolution of the G.G. case could be delayed until late June, it is possible - even if the Court agrees to give the case a full hearing - that the Court could dispose of this case as soon as this winter, especially if the Court splits 4-4 and there is no need for the justices to write opinions. Breyer's courtesy vote may only delay Grimm's ability to enjoy his full civil rights, without preventing Grimm from ever attending a high school free from discriminatory policies.

In the voting rights cases, by contrast, conservatives only need to delay resolution of the cases until Election Day this November for Republicans to benefit from the challenged voter suppression laws, assuming that Breyer gives them another courtesy vote in those cases. And once the election has happened, the voters who were disenfranchised by those laws will never have the opportunity to vote in the November 2016 election again.

Additionally, as time passes the GOP's hand only gets stronger in these cases. The Roberts Court has historically been reluctant to halt voter suppression laws as an election draws near. So even if Breyer only grants his conservative colleagues the "courtesy" of a very short stay, they may use that time to run out the clock and then argue that it is too close to the election to lift the stay.

In fairness to Breyer, the justice did explain in G.G. that part of his reason for granting the courtesy vote is that doing so "will preserve the status quo (as of the time the Court of Appeals made its decision)." So Breyer's own reasoning only extends, at most, to voter suppression laws that are already in effect. If the law has not yet taken effect, perhaps because it was halted by a court order shortly after its passage, then Breyer's explanation for his vote in G.G. does not extend to that law.

Nevertheless, should Breyer decide to cast similar courtesy votes in any voting rights case, he is likely to permanently strip voters of their ability to participate in the upcoming election. And, if an election is close, he could potentially change its outcome as well.