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Tenth Circuit Court of Appeals Agrees to Hear Hobby Lobby Case, In What Some See as ‘Ominous’ Development

Jodi Jacobson

In an unusual move, the full United States Court of Appeals for the Tenth Circuit has agreed to hear an appeal of an earlier ruling in the lawsuit brought by Hobby Lobby against the birth control benefit in the Affordable Care Act.

ThinkProgress reports this morning that the United States Court of Appeals for the Tenth Circuit has agreed to hear an appeal of an earlier ruling in the lawsuit brought by Hobby Lobby against the birth control benefit in the Affordable Care Act. Last year, a panel of the court denied Hobby Lobby’s request for an injunction against the birth control benefit, which requires that all employer-provided health plans include birth control as a key aspect of preventive care.

Now, as Ian Millhiser notes, the Court has agreed to an unusual nine-judge hearing, which he sees as an ominous development given that such “en banc” hearings normally signal that a majority of the  justices in question disagree with the original ruling, and that most of the appointees to this court are conservatives. Millhiser writes:

The court’s decision to hear the case en banc is an ominous sign for women in the workforce. More often than not, courts of appeals agree to hold an en banc hearing only when a majority of the court’s judges disagree with a panel’s previous disposition of a case. Even if that was not the motivation behind this particular decision to en banc this particular case, the fact remains that 6 of the Tenth Circuit’s 10 active judges are Republican-appointees (although one of the Republicans, Judge Jerome Holmes, is recused).

Millhiser further points to two factors at play in these decision. One is the failure of the Obama administration to appoint judges to fill vacancies, and a second is the failure of the Senate to push through real filibuster reform. “Two seats on the Tenth Circuit are vacant,” writes Millhiser, “and President Obama has yet to nominate anyone to fill these seats.”

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Finally, Millhiser examines “how quickly many judges decided they object to the rules when that would have been a fringe position just a few years ago,” and the extent to which they would be overturning precedent by deciding in favor of Hobby Lobby.

For all these reasons, he concludes, “the full Tenth Circuit’s decision to hear the birth control case does not bode well for women’s access to birth control.”

Commentary Law and Policy

Republicans Make History in Obstructing Merrick Garland for Supreme Court

Jessica Mason Pieklo

Merrick Garland is now officially the longest Supreme Court nominee to go without confirmation hearings or a vote in U.S. history.

Merrick Garland, President Obama’s selection to replace Justice Antonin Scalia, now has the dubious distinction of being the longest U.S. Supreme Court nominee ever to go without a vote to confirm or reject his appointment, thanks to Senate Republicans’ refusal to do their jobs.

I can’t say it any differently. This has been an utter, total failure by grown men, and a few women, in the Senate to do the kind of thing they’re supposed to in exchange for getting paid by the rest of us. And after nearly a decade of unprecedented—and I mean unprecedentedobstruction of President Obama’s judicial nominees writ large, there’s no flowery language that can capture how our federal courts’ slow burn on the the Republicans’ watch has now caught full fire with the fight over Garland’s nomination.

Instead what we have are dry, hard facts. A century ago, Justice Louis Brandeis was forced to wait 125 days before his confirmation to become the first Jewish justice on the Court. Justice Scalia died on February 13 of this year. President Obama nominated Garland on March 16. Wednesday marked 126 days of zero Senate action on that nomination.

And since Congress is now on recess, that won’t be changing anytime soon.

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It’s not just that the Senate hasn’t held a vote. They have held no hearings. Several senators have refused to meet with Garland. They have taken. No. Action. Not a bit. And here’s the kicker: None of us should be surprised.

President Obama had no sooner walked off the Rose Garden lawn after announcing Garland’s nomination in March than Senate Republicans announced their plan to sit on it until after the presidential election. Eight months away. In November.

Senate Republicans’ objection isn’t to Garland himself. He’s a moderate who has generally received bipartisan praise and support throughout his career and should, on any other day, sail through the confirmation process. As compared with both of President Obama’s other appointments, Justices Sonia Sotomayor and Elena Kagan, Garland is practically a gift to Senate Republicans in all his moderate-aging-white-guy-ness. I mean, who would have thought that of all the nominees Republicans were going to double-down their obstruction efforts on, it would be Justice Dad?

Instead, their objection is to the fact that the democratic process should guarantee they lose control of the Supreme Court. Unless, of course, they can stop that process.

Conservatives have spent decades investing in the federal courts as a partisan tool. They did so by building an infrastructure of sympathetic conservative federal judges through appointments when in executive power, and by blocking liberal attempts to do the same when in the political minority. It’s an investment that has largely paid off. Federal circuit appeals courts like the Fifth, Sixth, Eighth, and Tenth issue reliably conservative opinions regularly, thanks to aggressive appointments by conservatives during the Reagan and Bush years.

Meanwhile, thanks to conservative obstruction under Democratic administrations—most egregiously under President Obama—71 district court seats currently sit vacant. Twenty-four of those seats are in jurisdictions considered by the courts themselves to be judicial emergencies: places where the caseload is so great or the seat has remained vacant for so long the court is at risk of no longer functioning.

It’s easy to see why conservatives would want to keep their grip on the federal judiciary given the kinds of issues before it: These are the courts that hear immigration and detention cases, challenges to abortion restrictions, employment discrimination cases, as well as challenges to voting rights restrictions. Just to name a few. But as long as there are no judges, the people being directly affected are left in limbo as their cases drag on and on and on.

Our federal courts of appeals are no better. Nine federal appellate seats sit vacant, five in jurisdictions deemed judicial emergencies.

These vacancies have nominees. Senate Republicans just refuse to confirm them.

And no, the other side doesn’t do this. Federal judgeships have always been political. But never have the Democrats used the judiciary as a blatantly partisan extension of their elected members.

The refusal to vote on Garland’s nomination is the most visible example of the conservatives’ drive to maintain control over the federal courts, but it’s hardly their most blatant display of sheer partisanship. I’m guessing that is yet to come when, should they lose the presidential election, Senate Republicans face the choice of quickly confirming Garland or continuing their stand-off indefinitely. And given what we’ve seen of the election cycle so far, do we really think Senate Republicans are going to suddenly grow up and do their jobs? I hate to say it, folks, but Merrick Garland isn’t getting confirmed anytime soon.


Federal Court Issues Preliminary Injunction Allowing Trans Student to Use Boys’ Bathroom

Imani Gandy

Gavin Grimm sued the Gloucester County School Board over its policy requiring students to use restrooms that reflect their “biological gender” rather than their gender identity.

A federal district court in Virginia issued an injunction on Thursday in favor of transgender student Gavin Grimm, requiring that Gloucester County School Board permit him to use the boys’ restroom at his high school.

Grimm sued the Gloucester County School Board over its policy requiring students to use restrooms that reflect their “biological gender” rather than their gender identity. The student’s attorneys argued that the policywhich essentially expels transgender students from communal restrooms and requires them to use “alternative” restroom facilitiesis unconstitutional under the 14th Amendment and violates Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex-based discrimination at schools that receive federal funding.

Grimm’s attorneys had asked the district court for an injunction blocking the policy. The court initially sided with the school board, ruling that its bathroom policy did not violate Title IX, and that the privacy interests of other students outweighed any potential harm to Grimm in using a different bathroom.

After Grimm appealed that ruling to the Fourth Circuit Court of Appeals, a three judge-panel reversed the district court’s dismissal of Grimm’s claim in late April, ruling that the district court had relied on the wrong standard in failing to issue the injunction. In backing Grimm, the court relied heavily on recent guidance issued by the U.S. Department of Education that denying transgender students access to the school bathrooms of their choice is a violation of Title IX, and remanded the case back to the lower court for a new hearing with instructions to include consideration of the Department of Education’s guidance. After entertaining a request by the school board that all 15 judges who sit in the Fourth Circuit rehear the case “en banc,” meaning before the full court, the Fourth Circuit announced that it would not review its prior ruling.

In Thursday’s order granting the injunction, the Virginia district court noted that “[i]t appears to the Court from the unrebutted declaration submitted by the parties that the plaintiff is entitled to use the boys’ restroom.”

“Therefore, for the reasons set forth in [Judge Davis’s] concurrence and based on the declarations submitted by the parties, the Court finds that the plaintiff is entitled to a preliminary injunction,” wrote District Court Judge Robert G. Doumar in the order.

Earlier this month, the school board requested that the U.S. Supreme Court review the case. The petition filed with the Court asks the justices to reexamine a line of legal precedent relied on by the Fourth Circuit in ruling for Grimm. This precedent, a principle of judicial deference sometimes referred to as the Auer/Seminole Rock doctrine, grants federal agencies like the Department of Education substantial leeway in interpreting the regulations for laws they are responsible for enforcing, like Title IX. But given the Court’s current calendar, the earliest it could hear the case, should it agree to take it, is next year.

In late May, the Supreme Court declined to to hear another case involving student loan financing that similarly sought to undermine the longstanding principle of judicial deference.

In an email to Rewire, Joshua Block, staff attorney for the American Civil Liberties Union, which represents Grimm in this lawsuit said, “This ruling will have the biggest impact for Gavin personally.”

“Under the Fourth Circuit’s decision, it was already clear that Gavin would ultimately prevail in court. This preliminary injunction makes sure that Gavin’s legal victory has a real impact on his life while he is still at school.”