The Morning Dispatch: The Supreme Court Expands Discrimination Protections

Happy Tuesday! Quick reminder that Father’s Day is in five days, and if you’re struggling to think of a gift, do we have a suggestion for you!

Quick Hits: Today’s Top Stories

• As of Monday night, 2,113,488 cases of COVID-19 have been reported in the United States (an increase of 19,430 from yesterday) and 116,122 deaths have been attributed to the virus (an increase of 390 from yesterday), according to the Johns Hopkins University COVID-19 Dashboard, leading to a mortality rate among confirmed cases of 5.5 percent (the true mortality rate is likely much lower, between 0.4 percent and 1.4 percent, but it’s impossible to determine precisely due to incomplete testing regimens). Of 23,984,592 coronavirus tests conducted in the United States (449,488 conducted since yesterday), 8.8 percent have come back positive.

• The Supreme Court ruled on Monday that LGBTQ individuals are protected under federal anti-discrimination laws. SCOTUS decided against reconsidering the qualified immunity doctrine, and passed on the opportunity to rule on several Second Amendment.

• Just days after Trump administration officials made clear they would not disclose recipients of taxpayer-funded Paycheck Protection Program loans, a new Freedom of Information Act suit alleges the Treasury Department is “unlawfully [withholding] agency records … regarding the decision to print President Donald Trump’s name on” CARES Act stimulus checks.

• State governments have laid off or furloughed nearly 1.5 million workers over the past three months. A new report from the left-leaning Center on Budget and Policy Priorities projected states will collectively experience a $615 billion shortfall in tax revenue over the next three years due to economic fallout from coronavirus.

• Joe Biden and the DNC collectively raised $80 million in May, their best month thus far and well ahead of Barack Obama’s numbers in May 2012 and Hillary Clinton’s numbers in May 2016. The Trump campaign has not yet released its May fundraising tally, but said it raised $14 million this past Sunday alone.

• The Food and Drug Administration ended its emergency use authorizations for hydroxychloroquine and chloroquine as coronavirus treatments on Monday, writing in a memo that “this drug may not be effective to treat COVID-19” and “the drug’s potential benefits for such use do not outweigh its known and potential risks.”

• The WNBA announced a plan to begin its season in July at the IMG Academy in Bradenton, Florida. Major League Baseball Commissioner Rob Manfred, meanwhile, told ESPN he is “not confident” there will be a 2020 season after talks between team owners and the MLB Players’ Association stalled over the owners’ reluctance to pay players their prorated salaries in a shortened season.

• A Gallup poll found only 63 percent of Americans currently say they are extremely or very proud to be an American, the lowest number since Gallup began conducting the survey in 2001 and down from 92 percent in 2003.

A Busy Day at the Supreme Court

Monday was a blockbuster day at the Supreme Court. Much of the news came not from what the justices did, but from what they opted not to do: declining to hear cases involving sanctuary cities, qualified immunity for police officers, and the Second Amendment right to bear arms.

But all that news paled in comparison to one hotly anticipated ruling the court did hand down in Bostock v. Clayton County.

That case looked at the question of whether Title VII of the Civil Rights Act, which forbids employment discrimination on the basis of sex, applies also to discrimination on the basis of sexual orientation or gender identity. In a 6-3 ruling, the court was unequivocal: Yes, it does. It is unlawful for a business to fire an employee simply for being gay or transgender.

It was easily the most consequential SCOTUS culture-war decision since Obergefell v. Hodges overturned bans on gay marriage nationwide back in 2015. (Perhaps more consequential: as the New Yorker pointed out, “not everyone gets married,” but “most American adults work.”) And its author was Trump appointee Neil Gorsuch.

“In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee,” Gorsuch wrote. “We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”

The decision was a remarkably clear illustration of several fault lines that persist within the conservative movement. First, there is the friction between textualism and originalism, two judicial philosophies that are often lumped together but that found themselves squarely opposed in this case.

Speaking for the textualists—those who eschew a law’s authorial intent to focus only on its explicit wording—Gorsuch’s argument was simple: Title VII forbids any and all discrimination on the basis of sex, and “an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” In short: If you are a business owner, and your female employees are allowed to date men, but you fire a male employee for dating a man, it’s hard to argue his sex was not a determining factor in your decision.

Speaking for the originalists—those who attempt to determine what a law’s text was publicly understood to mean at the time it was passed—Justice Samuel Alito fervently disagreed: It was staggeringly plain, he argued, that not a single legislator who voted to codify Title VII would have considered discrimination “on the basis of sex” to include sexual orientation and gender identity. The very concepts would have been foreign to them.

That friction was nothing, however, compared with what became evident between the conservatives who praised Gorsuch’s decision as quality textualism and those who argued that it amounted to a betrayal of the whole point of getting Trump justices on the court: to get the right some policy wins.

President Trump himself was seemingly among the former camp. “They’ve ruled and we live with their decision. That’s what it’s all about,” he said Monday. “We live with the decision of the Supreme Court. Very powerful. A very powerful decision, actually.”

That wasn’t nearly enough to placate some movement conservatives. Tweeted Jon Schweppe of the social conservative American Principles Project: “I was told there would be winning.”

Breaking down the SCOTUS punts.

Bostock was the headliner, but it wasn’t the only important SCOTUS move Monday. It’s important also to touch on the cases the justices didn’t take up on qualified immunity and the Second Amendment.

As we’ve recently discussed, qualified immunity is the legal doctrine that protects law enforcement officers from legal liability when they violate a person’s civil rights. In theory, the legal principle seeks to shield public officials from liability for the gray areas involved in doing their jobs. But critics argue the doctrine is an overly broad shield that incentivizes careless and even reckless police behavior that disregards the well-being of the very people they’re supposed to protect.

This formerly dusty legal doctrine has become a hot topic thanks to police reform debates since the death of George Floyd, with several bills in both the House and Senate proposing the doctrine be overturned and the White House declaring the proposal a “nonstarter.” Yesterday, the Supreme Court refused to weigh in on the issue, declining to hear all nine cases that were pending their consideration.

A notable dissent came from Justice Clarence Thomas, who argued that the doctrine, as developed by a pair of former Supreme Court cases, defied the original purpose and text of the Civil Rights Act of 1881.

The Supreme Court’s rejection of 10 Second Amendment-related cases also struck a blow to gun rights advocates.

In 2008, the Supreme Court upheld the right of an individual to keep and bear arms in his or her household for defense purposes in District of Columbia v. Heller. But more than 10 years later, the debate over the constitutionality of many state gun control laws—like assault weapon bans—continues.

Many anticipated the Supreme Court would hear a case involving a New Jersey law that requires individuals to demonstrate a “justifiable need” to carry a firearm. In his dissent from the court’s decision not to hear the case, Justice Thomas, who was joined by Justice Kavanaugh, argued that this type of restriction runs afoul of the court’s earlier Second Amendment jurisprudence.

“In several jurisdictions throughout the country, law-abiding citizens have been barred from exercising the fundamental right to bear arms because they cannot show that they have a ‘justifiable need’ or ‘good reason’ for doing so,” he wrote. “This Court would almost certainly review the constitutionality of a law requiring citizens to establish a justifiable need before exercising their free speech rights.”

How Lagging Are the Coronavirus Lagging Indicators?

Last Wednesday, we wrote to you about Texas, Arizona, and California—three states experiencing a troubling surge in coronavirus cases over the past few weeks. But they’re far from alone. As of yesterday, per the New York Times, new cases are increasing in 21 states (plus Puerto Rico), and have more or less plateaued in an additional nine.

Some of this growth, as we’ve discussed, can be attributed to increases in testing—President Trump spoke to this phenomenon rather clumsily yesterday, saying, “if we stop testing right now, we’d have very few cases, if any.” But in many states, the rise in new cases is outpacing the rise in testing capacity, pointing to a genuine increase in the virus’ spread—not just our ability to track it.

As you may have noticed in our daily COVID-19 statistics, however, the number of deaths attributed to the coronavirus has continued to decline, even as new cases plateau or increase. Per The Dispatch’s analysis of Johns Hopkins University’s coronavirus data, the daily coronavirus death seven-day rolling average measured in at more than 2,400 for nearly a week in late April, and remained at more than 1,000 through the end of May. Today it stands at 733.

At first glance, this makes sense—COVID-19 patients that succumb to the virus typically die two to five weeks after contracting it. “Granted, this early indicator looks bad,” R Street Institute senior fellow Josiah Neeley joked on Twitter, “but the lagging indicators don’t look so bad yet.”

Deaths, however, have been decreasing at a faster rate than new cases for several weeks at this point. So are there additional factors at play, or are today’s relatively small fatality numbers destined to balloon up again soon?

The “most likely explanation is death is a lagging indicator,” University of Kansas coronavirus expert Anthony Fehr emailed The Dispatch. But “deaths have been steadily dropping for awhile without a concurrent drop in cases per day, and I would have thought this is due to hospitals being less stressed and more capable of attending/treating patients as the large influx of early cases have resolved.”

Older Americans—and Americans with relevant preexisting conditions—have likely not ventured back out in public in recent weeks at the same rate as younger Americans, meaning those most likely to die from coronavirus are a smaller percentage of the total number of cases than they were at the outset of the pandemic. “Some of it is a lag,” Yale public health professor Dr. Howard Forman said, noting that the lag will get longer the more efficient our testing regimen is. But “some of it is that we are seeing less vulnerable populations being infected at the moment: We have done a better job at protecting nursing home patients, for instance.”

Johns Hopkins University epidemiologist Dr. Chris Beyrer agreed: “Many of the U.S. states now seeing rises in cases saw these after Memorial Day openings and relaxations of social distancing, and these were much more likely to be younger, healthier, active populations.”

Experts were split on whether improved treatment has anything to do with the decreased case fatality rate. “We are probably seeing SOME improvement in treatment, but there are no indications that this is causing a vast change in mortality, just yet,” Forman said. Presented with this question, Beyrer told us “none of the current therapies have been shown to improve survival—just shorten disease course for those who are likely to survive. So your hypothesis about improving clinical outcomes may unfortunately be the least likely explanation.”

Dr. Benjamin Daxon—an ICU intensivist at the Mayo Clinic who volunteered at a New York City hospital in late April (and wrote about the experience for The Dispatch)—said “there’s no new treatment for COVID,” but added that doctors may be getting more disciplined at applying existing interventions as clinical trials of various “miracle drugs” begin to fade.

“So far, the evidence looks like [antiviral drugs like hydroxychloroquine and remdesivir] probably don’t [work], but a lot of people were trying them, and the more novel things you try, the more you’re distracted from what we know actually works,” he said, referencing “bread and butter” critical care like fluid and blood pressure management. “The more you focus on silver bullets and fancy new drugs, the less you focus on things that we do know improve mortality.”

Even so, Daxon added, “if we’re figuring out how to treat it better, it’s marginal, and it wouldn’t make a difference in national statistics.”

Worth Your Time

• The coronavirus pandemic is far from over, but the public is getting antsy. Mass protests and social gatherings in many states show that people are tiring of social distancing requirements. These new norms seem to contradict recent polling, which shows that 58 percent of Americans still want the government to “take all necessary steps to ensure the public is safe even if it means keeping businesses closed longer and hurting the economy.” In a Wall Street Journal op-ed, Yuval Levin and Scott Gottlieb provide some guidance to the public as the summer draws near.

• The New York Times published a long interview with former Daily Show host Jon Stewart about the state of our country and the world writ large. Although he’s rarely in the spotlight these days, it’s difficult to overstate how influential Stewart’s commentary was at the height of his tenure. He was undoubtedly one of the wittiest voices on the left, and his pioneering humor vis-a-vis political commentary schtick was an early cause of the transformation of our media ecosystem. He’s blunt about the problems with news-as-entertainment and the ways that he contributed to them. “As things progress, to get the same dopamine hit, you have to push it further. Although [Bill] O’Reilly pushed it pretty far. The question was always, Why would you talk to him? Why do you have him on the show if you can’t destroy him? If you want to talk about the worst legacy of ‘The Daily Show,’ it was probably that. … That’s the part of it that I probably most regret. Those moments when you had a tendency, even subconsciously, to feel like, ‘We have to live up to the evisceration expectation.’ We tried not to give something more spice than it deserved, but you were aware of, say, what went viral. Resisting that gravitational force is really hard.” Still, Stewart is optimistic about America. “The truth of the American experiment is that government is messy. It’s hard to manage,” he tells the Times. “We are melding cultures and religions in a way that most countries don’t. But we have an exceptionalism that we have taken for granted, and we get lost in the symbolism of who we are rather than the reality. The reality of who we are is still remarkable.”

• Another excellent recent New York Times profile is that of Chris Wallace, the enigmatic anchor of Fox News Sunday. In an age of declining trust in media institutions, Wallace shines as a beacon of hope for serious journalism. He’s not afraid to challenge politicians and partisan actors on both sides of the aisle, and earned Fox News its first Emmy Award nomination for his 2018 interview with Vladimir Putin. Perhaps not coincidentally, he’s also full of contradictions: as the Times article’s opening paragraph writes, “Chris Wallace is a registered Democrat who hosts ‘Fox News Sunday,’ a child of two Jews who keeps a rosary by his bedside, a Washington wonk who has vacationed in Italy with George Clooney.” He has, to use the article’s description, a “dual role as insider and outlier at Fox News that has made him an object of media fascination in the Trump era.”

Presented Without Comment

Also Presented Without Comment

Toeing the Company Line

• We finally got an interesting Supreme Court Monday, and Sarah wasn’t going to miss it—new baby and all. Check out the latest Advisory Opinions podcast breaking down what SCOTUS declined to take up—gun rights and qualified immunity—and what it didn’t—federal anti-discrimination laws.

• If you’re interested in learning a little bit more about how we at The Dispatch are thinking through what we’re doing, Steve recently went on the Digiday Podcast to talk through our founding, editorial decisions, and business model. 

• Christian Schneider writes about how violent protests got out of control in Madison, Wisconsin. The city has long had a reputation as a kind of progressive Midwestern utopia, but in recent years has struggled to adapt to its changing racial demographics.

• Ryan Morrison has a piece on the site today explaining a new IRS rule that prevents the agency from collecting information on donors to many non-profits. “Americans have a right to support social causes without being harassed. The best way to protect that right is for the IRS to avoid collecting their sensitive information in the first place.”

Let Us Know

That Gallup poll on American pride was an eye-opener for us here at the Morning Dispatch, particularly the sustained decline from 2013 to today. If you were contacted for this survey, would you have said you were “extremely” or “very” proud to be an American? When were you proudest to be an American? What do you think has contributed to this staggering decline?

Reporting by Declan Garvey (@declanpgarvey), Andrew Egger (@EggerDC), Sarah Isgur (@whignewtons), Charlotte Lawson (@charlotteUVA), Audrey Fahlberg (@FahlOutBerg), Nate Hochman (@njhochman), and Steve Hayes (@stephenfhayes).

Photograph by Jonathan Newton /Washington Post /Getty Images.

*Correction, June 16, 2020: An earlier version of this newsletter misstated a conceptual difference between textualism and originalism. We originally described originalists as “those who attempt to define what the intent of a law was at the time it was passed.” They are more accurately described as “those who attempt to determine what a law’s text was publicly understood to mean at the time it was passed.”