'They need to stop': How 'unforced errors' from liberal advocates help a 'hostile court'

30 June

U.S. Supreme Court Justice Clarence Thomas in 2012 (Creative Commons)

Two recent Supreme Court decisions illustrate how overzealous litigation decisions from liberal groups are ultimately setting back LGBTQ+ rights across the country, according to one analyst.

In a Monday essay for the Atlantic, attorney Duncan Hosie posited that strategic miscalculations from groups like the American Civil Liberties Union (ACLU) — where he formerly worked as a fellow — are "doing more harm than good" for the advancement of equal rights for marginalized populations. Hosie further argued that these defeats will only continue until liberal advocacy organizations undergo a complete rethinking of their strategic approach, suggesting that it's a mistake to rely on federal courts to provide relief.

Hosie cited two recent examples of "unforced errors" by liberal lawyers in the United States v. Skrmetti decision and the Mahmoud v. Taylor ruling, which were both handed down at the end of the Supreme Court of the United States' (SCOTUS) most recent term. Skrmetti pertained to a case the ACLU brought against the State of Tennessee attempting to reverse its ban on gender dysphoria treatments for minors. The Mahmoud decision was the result of litigation brought in Montgomery County, Maryland, where a local school district withdrew parents' ability to "opt out" of having their children learn from curriculum with LGBTQ themes.

As Hosie recounted, both the ACLU and the Montgomery County school district lost once their cases made it to the 6-3 conservative supermajority SCOTUS. According to the Atlantic contributor, the ACLU made a massive error when it decided to appeal the Skrmetti decision in Tennessee's favor at the circuit level (the 6th Circuit's binding jurisdiction is limited to Kentucky, Michigan, Ohio and Tennessee) to the Supreme Court, and having what could have been a small setback end up applying to 340 million Americans.

And in the case of Mahmoud, Hosie made the point that while LGBTQ rights advocates could have made a "strategic retreat," restored the opt out and brainstormed ways to "moot the case," they instead chose to roll the dice and allow SCOTUS to issue a new precedent that applied not to a school district of one million people, but the entire country. He observed that the party-line decisions in which the six Republican appointees voted in unison with the three Democratic appointees dissenting suggested that these were the exact types of cases that GOP presidents wanted a conservative-majority court to decide.

"Rulings such as those in Skrmetti and Mahmoud are the predictable consequences of liberal litigation strategies that invite a hostile Court to codify an agenda that the Court’s conservative majority was handpicked to establish," he wrote. "

"Progressive lawyers need a strategic recalibration," he continued. "...They need to stop reflexively turning to federal courts, and especially the Supreme Court. Avoiding high-risk, high-profile litigation in inhospitable forums does not mean abandoning constitutional advocacy. It means redirecting that advocacy toward the democratic arenas of constitutional politics, such as legislatures, ballot initiatives, grassroots organizing, and the broader public square. In these spaces, progressives can build popular support, blunt the impact of adverse rulings, and shape the constitutional culture that, over time, influences judicial doctrine itself."

Click here to read Hosie's full essay in the Atlantic (subscription required).

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