by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
Legal scholar Michael Greve has a few acerbic things to say about recent developments in Texas v. United States — a case in which more than a dozen plaintiffs have challenged Obama adminsitration rules regarding access to restrooms, locker rooms, and showers:
Last week, in a case brought by the State of Texas and several other states and state agencies, a U.S. District Court (Judge Reed O’Connor, Northern District, Texas) issued a preliminary injunction against the feds’ rule … regarding bathroom, locker room, and shower access for transgendered individuals…. The ruling is just one brief episode in the transgender bathroom saga, whose trajectory points to yet another Supreme Court determination on conflicts between the Constitution’s Meaning of Life Clause and the rule of law as we thought we knew it. (Said conflict is resolved by the proposition that a right-minded administration gets to do what it wants.) But the decision is still worth a few remarks….
In 38 double-spaced pages, including the summary of the background and legal standards and the signature page, the judge disposes of the government’s multiple defenses to the highly unusual remedy of a preliminary injunction….
Can a court dispose of a half-dozen fairly complicated questions in an opinion you can write in an idle afternoon, over a six-pack of Coors? In this case, any of my AdLaw students could…. These defenses … were either cranked up by a moron or else, in bad faith. Judge Reed’s opinion rests not on some abstruse theory but on rote citations, directly on point….
In response to the ruling, the DOJ said it was “disappointed.” It was not: it knew it was coming. They’re not idiots; they’re strategists. The strategy is to do the thing you want to do even if it’s obviously illegal; to hammer the nearest target (North Carolina), in a legal setting where the defenses are attenuated and the defendants look obstinate or worse; and to bet that the media drumbeat will carry you through.
The amazing thing about Judge Reed’s ruling is not the result but its anodyne tone: how does a district court confronted with this stuff keep its cool? That question in turn begets others: how can DOJ’s lawyers look themselves in the mirror, and how can a rule-of-law country live with lawyers who can?