Stephen Breyer’s Bizarre Reversal of the Use of “Courtesy”

Ian Millhiser - Supreme Court CourtesyTo explain, the “GG” in [Gloucester County School Board v GG] is Gavin Grimm, a trans high school senior who challenged his school’s discriminatory bathroom policy. Grimm won in a federal appeals court, and the school district sought a stay of that decision from the Supreme Court. Although Breyer opposed granting the stay, he nonetheless voted with his four conservative colleagues to grant it, explaining that he did so “as a courtesy” that “will preserve the status quo (as of the time the Court of Appeals made its decision) until the Court considers the forthcoming petition” asking the justices to hear this case on the merits.

Such “courtesy” votes are fairly common in death penalty cases due to a quirk of the Supreme Court’s rules. It takes four justices to agree to hear a case, but five to grant a stay. To prevent a situation where the Court announces that it will hear a capital case, only to have that case become moot after the inmate at issue in that case is executed, a fifth justice often grants a courtesy vote to stay that execution while the case is pending.

Courtesy votes in death penalty cases, in other words, acknowledge the fact that death is irreversible. If an individual is executed, and the Court later decides that this execution is illegal, not even the Supreme Court of the United States has the power to bring this individual back to life.
Nothing about Gavin Grimm’s case is analogous to the irreversible machinery of death. When Grimm returns to school this fall, he will either be afforded his full measure of civil rights, or he won’t be. If the school district allows him to use the men’s room, and then a Supreme Court decision holds that the district is free to lock Grimm out of that bathroom, then there is nothing preventing the school district from doing so in the future.

Indeed, the irony of Breyer’s courtesy vote is that it may bring about the very circumstance that these votes are supposed to prevent. Again, courtesy votes are cast in death penalty cases to prevent an irreversible event from frustrating the Court’s jurisdiction over a case. The stay that Breyer voted to grant will remain in effect until “the issuance of the judgment of this Court,” if the Supreme Court agrees to hear this case. But the Court may not issue its judgment until late June, weeks after Grimm will have graduated from high school.

In extending “courtesy” to his conservative colleagues, in other words, Breyer may have taken away Grimm’s one shot to have his rights vindicated.

—Ian Millhiser
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