Justice Breyer Uses Trans Restroom Case to Revive “Courtesy Fifth Vote”


Last week, in Gloucester County School Board v. G.G., the Supreme Court stayed lower court rulings that had required a school board in Virginia to permit a trans student to use the restroom corresponding to his gender identity (here male). The Supreme Court’s intervention may prove temporary. By its terms, the stay lasts only until the Court receives a petition for review from the school board and resolves the case, either by denying review or, after granting review, deciding it on the merits.

Moreover, the high Court’s action sends no clear signal about the justices’ views on the question whether existing anti-discrimination laws forbid schools or other entities from barring trans students from using the restrooms that correspond to their gender identity. A mere stay to grant the petitioner time to file for Supreme Court review sets no precedent, and there is special reason to treat this particular stay as equivocal. Although the bottom-line vote to stay the lower court injunction was 5-3, Justice Breyer wrote a separate concurrence indicating that he cast his vote as a courtesy to his four colleagues—Chief Justice Roberts and Justices Kennedy, Thomas, and Alito—who wished to hear the case on the merits.

Should the Court grant review and give plenary consideration to the Gloucester County case, there will be time enough to discuss the important questions it raises about the relation between trans equality and laws forbidding sex discrimination. In this column, however, I will focus on Justice Breyer’s courtesy vote and the broader practice it apparently seeks to revive.

A Fifth “Courtesy” Vote in Capital Cases

Under the Supreme Court’s procedures, it takes the votes of at least four justices to grant a petition for review. However, it takes a majority vote of five justices for the Court to act on the merits, either by reversing or affirming a lower court ruling or by granting some sort of temporary relief. The difference between four and five can be decisive.

Suppose that a petitioner seeks review of a state or lower federal court judgment upholding a death sentence against him. Suppose further that his execution is scheduled to take place in a week. Now imagine that four justices think his case raises enough important issues to warrant granting review. They vote to take the case, or as Supreme Court aficionados say, to “grant cert” (short for the writ of certiorari), which places the case on the Court’s docket. To preserve the status quo—that is, to keep the petitioner alive—while they consider the case, these four cert-granting justices will also vote to stay the execution pending resolution of the case by the Supreme Court. If the petitioner wins, the stay will be replaced by some other order, such as a remand for resentencing; if he loses, the stay will be lifted and the execution can proceed; but either way, the Court will be able to consider his case in an orderly fashion.

What happens if the other five justices think the petitioner’s case does not warrant review? They will vote to deny cert. And if they also think that the petitioner’s arguments are likely to fail, they will also vote to deny the stay of execution. Under the “rule of four,” the case is placed on the Supreme Court docket for review, but because it takes five votes for the Court to take any further action, the petitioner in my example will be executed a week after review is granted, just as he would have been had the Court not granted cert. The difference between the necessary four votes to grant cert and the absence of the necessary fifth vote to grant a stay of execution will mean that the case is mooted by the petitioner’s death.

The foregoing grisly scenario has happened at the Supreme Court. For a time, a practice developed under which one or more of the five justices who voted to deny the cert petition would nonetheless vote to grant the stay as a courtesy to the four colleagues who wanted to hear the case. This practice broke down in the 1990s, however, so that a number of executions were carried out after the Supreme Court voted to hear the condemned’s case.

The current status of the courtesy practice is not entirely clear. In a 2007 blog post, attorney and SCOTUSblog founder Tom Goldstein wrote that the practice of a fifth courtesy vote had been re-established, at least where there were four votes actually to grant cert, rather than merely four votes to grant a stay to give a condemned prisoner time to file a cert petition. However, Goldstein himself noted that the re-established practice was quite limited in scope, and subsequent cases have showed the limit. For example, in 2008, four justices wanted to hear the views of the Solicitor General before deciding the merits of Medellin v. Texas, but no fifth courtesy vote could be found to stay the execution long enough to receive those views. Justice Breyer, who was one of the four, lamented in dissent that none of his colleagues in the majority granted the fifth and decisive courtesy vote for a stay.

In a 2015 law review article, Hofstra Law Professor Eric Freedman carefully reviewed the past and current practice of the Court, concluding that Mr. Goldstein’s observation may be technically correct—there are no recent cases in which a courtesy fifth vote was withheld where four justices voted to grant cert in a capital case—but that courtesy fifth votes were not readily forthcoming in any other context. Professor Freedman proposed a general rule that would automatically stay an execution whenever four justices wanted more time to consider a case, for whatever reason.

Justice Breyer’s Dubious Expansion of the Courtesy Vote

In his short concurrence in the Gloucester County case last week, Justice Breyer explained that he was casting a courtesy vote. He relied on his own prior dissent in Medellin as authority for doing so. In addition to the fact that four of his colleagues had voted to stay the lower court ruling, Justice Breyer invoked the fact that the Court is currently in recess and added that “granting a stay will preserve the status quo.”

Justice Breyer’s Gloucester County courtesy vote may have been meant to prod his colleagues into informally adopting something like the rule proposed by Professor Freedman. In a future case, one can imagine Justice Kennedy or Chief Justice Roberts trying to decide whether to cast a courtesy vote to stay an execution and thinking “well, Steve Breyer did us a solid in the Gloucester County case, so I guess I will return the favor.” If that is indeed what Justice Breyer is attempting, and if it works, then I take my hat off to him. It is positively ghoulish that the Court allows any of its deliberations to be mooted by the execution of a party before it, and an indirect route to Professor Freedman’s rule is better than the current practice.

However, evaluated on its own merits, Justice Breyer’s courtesy vote in Gloucester County was ill-advised. For one thing, the fact that the Court is in recess should count for little. True, the Court does not hear full oral arguments between the end of June and the beginning of October (except in extraordinary circumstances, as when it held a reargument in Citizens United v. FEC in early September, 2009). But the Court conducts the sort of business at issue in Gloucester County as a matter of routine regardless of where the justices are. After all, even when they are all in the Supreme Court building, the justices communicate with one another on motions matters mostly in writing. Wherever they are, they have email and telephones. And their law clerks remain in D.C. throughout the steamy summer.

Justice Breyer’s other reason for granting a courtesy fifth vote was equally unpersuasive. In a capital case, a courtesy fifth vote to “preserve the status quo” is a vote to prevent the state from killing a human being and thus mooting the case. In Gloucester County, by contrast, there was no risk of the case becoming moot for lack of a stay. If Justice Breyer had voted to deny the stay but, after the filing and granting of a cert petition, briefing, and oral argument the Court had ruled against respondent G.G., the absence of a stay would not in any way prevent the Court from ordering relief. At that point, the school board would be entitled to exclude G.G. from the boys’ restroom.

Put differently, in a capital case, the risks of erroneously granting a stay of execution and the risks of erroneously denying a stay are asymmetrical. In an ordinary case like Gloucester County, however, those risks are symmetrical. In this kind of case, the usual procedure for deciding whether to grant a stay is to determine whether the party seeking the stay will likely prevail on the merits and suffer irreparable harm without the stay. Whatever view one takes of the merits, it is laughable to suggest that a school district will suffer irreparable harm from accommodating one trans student’s desire to use the restroom that matches his gender identity. Indeed, the harm from the granting of the stay—in the form of shame and potentially worse for G.G.—seems much more serious.

Justice Breyer should be commended for attempting to bolster a practice of courtesy on the Supreme Court. But he erred by doing so in a case that validates an extreme lack of courtesy shown by a school board to one of its students.

Posted in: Courts and Procedure

Tags: Legal, SCOTUS