I'll mark this down in my ledger.

Photographer: Alex Wong/Getty Images

Courtesy Counts in Transgender Bathroom Case

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
Read More.
a | A

You might be surprised that liberal Justice Stephen Breyer provided the fifth vote Wednesday to block a transgender student from using the men’s room at his high school while his case is pending at the U.S. Supreme Court. The reason is an obscure but important Supreme Court custom known as the “courtesy fifth”: When four justices want to stay a lower court order pending appeal, a justice who otherwise disagrees will provide the fifth vote. The practice is used mostly to delay executions of prisoners with plausible constitutional claims. Ever the pragmatist, Breyer was trading the boy’s short-term interests for the lives of future death-row inmates.

In this case, the school board in Gloucester County, Virginia, adopted a policy requiring students, include Gavin Grimm, to use the bathrooms associated with their biological sex, not their ascribed gender. The U.S. Court of Appeals for the 4th Circuit struck down that rule as a violation of federal sex discrimination law. After that happened, a federal district court issued an order to the school telling it to let Grimm use the men’s room when school starts.

QuickTake Transgender Rights

Meanwhile, the school board announced that it plans to ask the Supreme Court to review the 4th Circuit’s decision. In conjunction with that anticipated filing of a petition for certiorari -- the official name of the document requesting review, also known as a “cert petition” -- the school board asked the justices to issue a stay to the district court’s order. The stay, which requires approval by a majority of the justices, has the effect of banning Grimm from the men’s room while the school board is filing its cert petition and the Supreme Court is deciding whether to grant it.

Justice delayed is justice denied, as the saying goes. Grimm’s ACLU lawyers asked the court to deny the stay. And three of the court’s liberal justices, coincidentally or not also the court’s three women, voted to deny it. They presumably think the 4th Circuit got it right, and don’t think the Supreme Court should grant cert and accept school board’s application for review.

The court’s four conservative justices voted to stay the order. That means they will almost certainly vote to hear the case.

Here’s where things get tricky. Under the Supreme Court’s rules, it takes four votes to grant cert. But it takes a majority of the court -- five votes, even when the court has only eight members -- to stay the order below.

In Grimm’s case, that might not mean very much. Suppose he uses the men’s room, and then the justices agree to take the case and overturn the 4th Circuit. All that will have happened in the interim is that Grimm will have used the men’s room until the court’s decision comes out. The school board claims this would be disruptive to the school’s functioning, but that’s pretty doubtful. Apparently before the school board’s rule was created, school officials had let Grimm use the men’s room.

The only thing that could go truly wrong from a legal perspective would be if Grimm, a senior, graduated before the court decided his case. Arguably that could make the case moot, because he’d no longer need to use the school’s restrooms. But that problem exists whether the stay is in place or not.

In a death penalty case, things are different. Often, a lower court has set a prisoner’s date of execution. The execution day may be scheduled before the Supreme Court has a chance to review the prisoner’s case. Even if there are four votes to hear the case, without a fifth vote for a stay, the prisoner will be executed -- and his case will never be heard.

The courtesy fifth vote is designed for exactly those situations. It isn’t always honored. But Breyer cares a lot about it.

In his brief explanation that he was providing the fifth vote as a courtesy here, Breyer cited a dissent of his from 2008. There he wrote that it was “particularly disappointing that no Member of the majority has proved willing to provide a courtesy vote for a stay” when the request for hearing “will be mooted by petitioner’s execution” and there were four votes to hear the case.

The citation was meant as a clear IOU for the court’s conservatives. Breyer was saying that by voting for the stay in the transgender bathroom case, he expects reciprocity in the future.

It’s too bad that Grimm won’t be able to use the men’s room as his senior year begins. But compared to saving a life, it’s a price he -- and we -- should be willing to pay.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net