In both cases, some of the most conservative justices signaled frustration with the court’s cautious approach to divisive issues.
June 28, 2021, 6:06 p.m. ET
WASHINGTON — The Supreme Court on Monday let stand a transgender youth’s victory in a case on access to high school bathrooms and revived a lawsuit from the parents of a man who had died in police custody.
Both moves drew opposition from some of the court’s most conservative members. Justices Clarence Thomas and Samuel A. Alito Jr. said they would have heard the transgender case, and they, along with Justice Neil M. Gorsuch, said the court had bowed to fear of public criticism in the case on police violence.
The court’s default mode this term has often appeared to be caution, frustrating conservatives on and off the court who had hoped its six-justice majority of Republican appointees would act more boldly.
The case on transgender rights appeared to close the book on a long-running lawsuit that started in 2015, when Gavin Grimm, a transgender boy who was a student at Gloucester High School in southeastern Virginia, sued the local school board over a policy that required students to use the bathrooms and locker rooms for their “corresponding biological genders.”
A divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled last year that the school board’s policy violated the Constitution and a federal law.
“The proudest moments of the federal judiciary have been when we affirm the burgeoning values of our bright youth, rather than preserve the prejudices of the past,” Judge Henry F. Floyd wrote for the majority. “How shallow a promise of equal protection that would not protect Grimm from the fantastical fears and unfounded prejudices of his adult community.”
The Supreme Court had agreed to hear an earlier appeal in the case but dismissed it in 2017 after the Trump administration changed the federal government’s position on transgender rights. The Biden administration has since adopted policies protecting transgender students.
Last year, the Supreme Court ruled in favor of transgender rights for the first time, saying that a federal employment discrimination law applied to L.G.B.T. workers. But Justice Gorsuch, writing for the majority in that case, said the ruling did not address access to restrooms.
“We do not purport to address bathrooms, locker rooms or anything else of the kind,” he wrote.
Mr. Grimm welcomed the Supreme Court’s rejection of the school board’s appeal in the case, Gloucester County School Board v. Grimm, No. 20-1163.
“I am glad that my yearslong fight to have my school see me for who I am is over,” he said. “Being forced to use the nurse’s room, a private bathroom and the girls’ room was humiliating for me, and having to go to out-of-the-way bathrooms severely interfered with my education. Trans youth deserve to use the bathroom in peace without being humiliated and stigmatized by their own school boards and elected officials.”
As is the Supreme Court’s practice, it gave no reasons for declining to hear the school board’s appeal.
In the excessive force case, Lombardo v. St. Louis, No. 20-391, the justices ordered an appeals court to take another look at a ruling in favor of police officers accused of suffocating a man by pressing on his back while he was facedown on the ground. In their petition seeking Supreme Court review, lawyers for the man’s family said the incident was reminiscent of the murder of George Floyd, the Black man whose death in Minneapolis police custody helped set off last summer’s racial justice protests.
The case started when police officers in St. Louis arrested Nicholas Gilbert, a 27-year-old homeless man, for trespassing in a condemned building and failing to appear in court for a traffic ticket. They brought him to a holding cell in a police station. Later, responding to an apparent suicide attempt, officers handcuffed and shackled Mr. Gilbert.
“Three officers held Gilbert’s limbs down at the shoulders, biceps and legs,” the Supreme Court’s unsigned opinion said. “At least one other placed pressure on Gilbert’s back and torso. Gilbert tried to raise his chest, saying: ‘It hurts. Stop.’”
After 15 minutes of struggling, Mr. Gilbert’s breathing became abnormal. “The officers rolled Gilbert onto his side and then his back to check for a pulse,” the opinion said. “Finding none, they performed chest compressions and rescue breathing. An ambulance eventually transported Gilbert to the hospital, where he was pronounced dead.”
Mr. Gilbert’s parents sued, losing in the federal appeals court in St. Louis, which ruled that the officers had not used unconstitutionally excessive force.
The Supreme Court said the appeals court may not have taken account of all of the relevant evidence.
“It is unclear whether the court thought the use of a prone restraint — no matter the kind, intensity, duration or surrounding circumstances — is per se constitutional so long as an individual appears to resist officers’ efforts to subdue him,” the Supreme Court’s opinion said, returning the case to the appeals court to give it “the opportunity to employ an inquiry that clearly attends to the facts and circumstances.”
In dissent, Justice Alito, joined by Justices Thomas and Gorsuch, said the Supreme Court had chosen the worst of the three available options in the case. It should have, Justice Alito wrote, either denied review or agreed to hear and decide the case itself.
“The court, unfortunately, is unwilling to face up to the choice between denying the petition (and bearing the criticism that would inevitably elicit) and granting plenary review (and doing the work that would entail),” Justice Alito wrote. “I favor the latter course, but what we should not do is take the easy out that the court has chosen.”
In a third opinion on Monday, Justice Thomas, writing only for himself in connection with the court’s denial of review in a tax case involving a Colorado marijuana dispensary, said that the court’s 2005 decision upholding congressional power to prohibit local cultivation and use of marijuana warrants reconsideration. Justice Thomas had dissented from that decision, Gonzales v. Raich.
“Once comprehensive, the federal government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana,” he wrote in the new case, Standing Akimbo v. United States, No. 20-645. “This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary.”