SCOTUS — barely — allows Trump’s New York state-court sentencing to proceed

The 5-4 vote raises significant concerns about the path ahead. Also: A federal judge wipes the Biden admin's Title IX sex discrimination rule off the books.

The U.S. Supreme Court was one vote away on Thursday evening from blocking Donald Trump’s New York state-court sentencing scheduled for Friday.

That would have been a shocking move into ongoing state-court proceedings by the court — and yet four justices said they would do so.

Justices Clarence Thomas and Sam Alito, unsurprisingly, would have granted Trump’s request to block his sentencing. In a more concerning note, two of Trump’s three appointees to the court — Justices Neil Gorsuch and Brett Kavanaugh — also would have granted the request.

The ruling came two days after Trump spoke with Alito — purportedly about the “qualifications” of a former Alito clerk who is a BigLaw partner and worked in the first Trump administration — and one day after Trump filed the request at the high court.

Chief Justice John Roberts and the third Trump appointee, Justice Amy Coney Barrett, joined the three Democratic appointees — Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson — in rejecting Trump’s request.

Even there, though, the reasoning suggested that at least some members of that one-vote majority were barely on board. In addition to citing the ability of Trump to challenge evidentiary violations relating to his immunity claims on appeal, the order from the Supreme Court also noted that “the burden that sentencing will impose on the President-Elect’s responsibilities is relatively insubstantial in light of the trial court’s stated intent to impose a sentence of ‘unconditional discharge’ after a brief virtual hearing.“ (This reflects a ruling from the New York trial judge, Judge Juan Merchan, last week about his intentions for the sentencing, set for 9:30 a.m. Friday.)

This statement in Thursday night’s Supreme Court order suggests that at least one of the justices in the majority required that statement to be issued in order to join the majority. That, in turn, suggests that there very well could be a majority of the court open to granting a president-elect — in at least some circumstances more burdensome than this one — some version of the immunity from prosecution that a sitting president has and that Trump argued for here.

Presuming that Thomas and Alito are lost causes, this should have been a 7-2 vote against Trump. The fact that it was a 5-4 vote — and a conditional one at that — is an alarming reality. It means that virtually any Trump argument could get the four votes necessary for certiorari, or merits review. The unusual conditional language, moreover, suggests that a majority could even be with Trump in the right — or wrong — circumstances on the merits (or in emergency shadow-docket requests like this one).

Trump’s sentencing will proceed, but the warning lights are nonetheless blinking red.

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The Biden administration’s Title IX LGBTQ student protections are gone

U.S. District Judge Danny Reeves issued a final ruling on Thursday vacating the Biden administration’s rule aimed at protecting LGBTQ students and updating school sex discrimination policies, a judgment with nationwide effect that is almost certain to stand given the quickly approaching change in administrations.

It was an inauspicious end to a long-sought rule that began taking shape in the form of guidance issued by the Obama administration.

The Education Department’s sex discrimination final rule, promulgated under Title IX of the Education Amendments Act of 1972, addressed many issues — from sexual harassment to reporting requirements — but was primarily challenged for its efforts to protect transgender students.

Reeves, a George W. Bush appointee in Kentucky, was one of the first judges to block implementation of the rule in June 2024, issuing preliminary rulings that represented what I called at the time “a particularly dramatic and wholesale reversal of long-building views that [sex discrimination] laws protect LGBTQ people as well.”

The apparent high-point of that build was the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, a 6-3 decision in which Justice Neil Gorsuch wrote for the court that the sex discrimination ban in Title VII of the Civil Rights Act of 1964 included bans on sexual orientation discrimination and gender identity discrimination. Chief Justice John Roberts and the court’s then-four Democratic appointees all joined Gorsuch’s decision.

One of President Biden’s day-one moves when taking office in 2021 was to direct departments and agencies to consider whether and how the reasoning of the Bostock decision applied to sex discrimination bans under other laws and under their purview. One of those entities was the Education Department, which went through the lengthy rulemaking process to issue its final 423-page rule in April 2024.

The rule defined sex in the Title IX sex discrimination ban as including both sexual orientation and gender identity, in accordance with the reasoning of Bostock. The rule also included provisions addressing “sex-separated facilities” and “hostile-environment harassment,” both of which include language that provides protections for transgender students. The rule did much more, however, including setting for the standards for schools to use in handling sex-based harassment complaints, pregnancy protections, and setting forth general obligations under the landmark law.

In the half-year since Reeves’s preliminary ruling, the trend continued, with every court but one deciding to block the rule in a series of challenges brought by many Republican-led states. Appeals from the Justice Department are pending in multiple appellate courts currently. None of the courts to block the rule grappled with the reality of the Bostock decision, let alone the logic of its reasoning. Instead, they pointed to the fact that Gorsuch noted that Bostock did not resolve the question under other laws, which is what courts do, and that Title IX uses different language than Title VII, which should not change what sex discrimination is.

Despite those flaws in the opinions, all of the decisions against the rule were preliminary rulings and they applied only to the plaintiff states, as well as to some local jurisdictions and nonprofit organizations that also sued.

On Thursday, though, Reeves issued a final judgment vacating the rule, a decision that Reeves acknowledged in his opinion “operates on the rule itself and prevents the rule’s ‘application to all who would otherwise be subject to its operation.’”

The basis for Reeves’s decision was similar to his decision issuing the preliminary injunction in June 2024, and Thursday’s opinion cites back to that opinion repeatedly. Of the first three Title IX decisions that I discussed in the article addressing Reeves’s initial opinion, I described Reeves’s decision as the most extreme of the three, fighting Bostock outwardly.

He doubled down on that on Thursday, rejecting Bostock’s application to Title IX and citing his newfound authority in the wake of the U.S. Supreme Court’s decision in Loper Bright Enterprises v. Raimondo to determine “the statute’s single, best meaning” himself. As such, he took that authority to decide what Title IX means, the department’s view notwithstanding, and set aside the rule:

The decision’s timing, moreover, prevents any meaningful appeal given the incoming Trump administration’s animosity toward the rule itself and transgender equality more broadly. Reeves’s action, moreover, does the new Trump administration a favor. By vacating the rule, the incoming administration won’t need to take action to withdraw the rule. It is gone, and the new administration will start with a blank slate.

Less than five years since the Supreme Court issued Gorsuch’s Bostock opinion, the landscape is substantially changed — and significantly darker for LGBTQ people.

With Reeves’s decision and the incoming Trump administration — not to mention more Trump judicial nominees eventually taking the bench — the protections the Supreme Court provided in the Title VII context appear unlikely to be extended beyond it for the foreseeable future. And that could be one of the better scenarios.

This article has been updated and expanded after initial publication, with the final update at 10:35 p.m.

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For all of Law Dork’s coverage of the Title IX rule challenges, see this page.

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