vox--2020-07-12--Why did liberals win so many cases before a conservative Supreme Court?

Last October , when the Supreme Court began its term , liberals had good reason to be despondent .
The Court ’ s most recent term , which ended Thursday , was the first full term since Justice Brett Kavanaugh , a staunch conservative , replaced his more moderate predecessor Justice Anthony Kennedy .
It was also the first term where Kavanaugh helped select every case that would be heard by the justices .
By all outward signs , the Court ’ s conservative majority approached its docket like they were children turned loose in a toy store .
The @ @ @ @ @ @ @ presented an existential threat to the right to an abortion .
It seemed likely to shut down the Deferred Action for Childhood Arrivals ( DACA ) program — which benefits hundreds of thousands of immigrants — potentially doing so permanently so that no future president could revive it .
And the Court appeared ready to expand the Second Amendment , a longtime project of Kavanaugh ’ s .
In the end , the Court took a far more measured approach to each of these cases .
The right to terminate a pregnancy survives @ @ @ @ @ @ @ pretty clearly that it is unlikely to survive much longer .
DACA also survives , although only due to a paperwork error that the Trump administration may correct .
The guns case ended , not with a bang but with a whimper .
This is still an extremely conservative Supreme Court .
The just-completed term was a disaster for voting rights .
It imposed significant new limits on Congress ’ ability to investigate President Trump .
The religious right walked away with several big victories .
The Court opened up a new front @ @ @ @ @ @ @ the Court also showed that there is at least some daylight between its interpretations of the law , and the policy preferences of the Republican Party .
A partial explanation for the liberal victories this term is that conservative advocates got ahead of their skis .
As Brendan Nyhan , a professor of government at Dartmouth College , wrote in 2015 — the last time the Court had a surprisingly liberal term — “ the court ’ s recent decisions may reflect a change in the cases being considered by the court rather @ @ @ @ @ @ @ the justices.
” When the Court moves rightward , conservative advocates are more likely to bring dubious cases — and conservative lawmakers are more likely to enact laws of dubious constitutionality — out of a belief that an ideologically sympathetic Court is likely to rule in their favor .
Liberal lawyers , meanwhile , will be more likely to avoid federal court unless they are sure their arguments are airtight .
As a result , the Supreme Court will tend to hear weaker claims from conservatives and stronger claims from liberals .
Additionally @ @ @ @ @ @ @ Court — Chief Justice Roberts and Justice Neil Gorsuch — do not always share the same ideological commitments as their fellow Republican justices .
Roberts is less active with movement conservatism than his four most conservative colleagues .
And Gorsuch ’ s commitment to a particular method of deciding cases sometimes overrides his conservative preferences .
Because Republicans control only five of the nine seats on the Supreme Court , conservative advocates often need to win the vote of every single conservative justice in order to prevail .
So if either Roberts or @ @ @ @ @ @ @ , that ’ s frequently enough to hand a loss to that argument ’ s proponents .
Conservatives brought several exceedingly weak cases to the Supreme Court this term Here ’ s a good rule of thumb for new law school graduates : It ’ s a bad idea to make a case that is literally identical to one that you recently lost in the Supreme Court .
Yet that ’ s more or less what anti-abortion advocates did in June Medical Services v. Russo .
In Whole Woman ’ s Health v. @ @ @ @ @ @ @ Court struck down a Texas law requiring abortion providers to obtain admitting privileges at a nearby hospital — a credential that is very difficult for abortion doctors to obtain and that does little or nothing to improve health outcomes .
June Medical asked the Supreme Court to uphold a Louisiana law requiring abortion providers to obtain admitting privileges at a nearby hospital .
As Justice Stephen Breyer noted in his June Medical opinion , the two laws were “ almost word-for-word identical.
” Conservatives undoubtedly hoped that , with Kennedy , who joined @ @ @ @ @ @ @ Health , no longer on the Court , they could get a different outcome in an interchangeable case .
But Roberts was unwilling to endorse such an attempt to treat his Court as a purely political body .
“ The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law , ” Roberts concluded in an opinion that reluctantly agreed to strike down the Louisiana law .
Much of Roberts ’ s opinion laid out his objections to the Court ’ s existing abortion rights @ @ @ @ @ @ @ uphold significant restrictions on abortion in the future .
He ’ s just not willing to uphold the exact same law that the Court struck down a few years earlier .
Similar things can be said about Department of Homeland Security v. Regents of the University of California , where Roberts joined his four liberal colleagues in holding that the Trump administration didn ’ t complete the proper paperwork when it decided to terminate the DACA program , which allows nearly 700,000 undocumented immigrants to live and work in the United States .
@ @ @ @ @ @ @ does not exist to excuse high-level government officials who do not want to do their homework .
If the Trump administration wanted to end DACA , it should have just fixed its paperwork error , rather than spending years litigating this case through the federal court system .
And then there ’ s Trump v. Vance , where the Supreme Court held that the president of the United States does not enjoy total immunity from state criminal investigations .
Many of Trump ’ s legal arguments in this case were so absurd that @ @ @ @ @ @ @ this means that conservative lawyers have nothing to gain from bringing audacious arguments to a conservative Court .
Twenty years ago , many justices believed that it is unconstitutional for the government to fund religious schools .
But in Espinoza v. Montana Department of Revenue , the Supreme Court held this term that states are required to fund such schools if they provide similar funding to secular private schools .
Similarly , in Trump v. Mazars , the president sought new protections against congressional immunity that were entirely at odds with existing precedents @ @ @ @ @ @ @ Court didn ’ t go quite as far as Trump ’ s lawyers asked it to go .
Nor did conservatives really lose anything meaningful in June Medical , Regents , or Vance .
Roberts is still likely to uphold nearly any anti-abortion law that ’ s brought before him .
The paperwork error in Regents can be cured .
And Vance largely just maintained a status quo that says the president isn ’ t completely above the law .
But if conservatives ask for too much , too fast from this Supreme @ @ @ @ @ @ @ justices ’ limits .
Roberts is very conservative , but he ’ s divorced himself somewhat from the conservative movement In the fall of 2007 , Chief Justice Roberts had just celebrated the second anniversary of his appointment as the nation ’ s highest-ranking judge when he delivered the “ 7th Annual Barbara K. Olson Memorial Lecture ” to the conservative Federalist Society .
According to the society ’ s website , that was the last time the chief justice spoke to this organization , which forms the locus of legal conservatism within @ @ @ @ @ @ @ , Roberts is quite unlike his four Republican colleagues .
Justices Clarence Thomas , Samuel Alito , Neil Gorsuch , and Brett Kavanaugh are all frequent speakers at the Federalist Society ’ s events — both Gorsuch and Kavanaugh took a victory lap at the society ’ s annual black-tie dinner not long after their confirmation to the Supreme Court .
Indeed , the Court ’ s rightmost justices frequently attend this dinner even when they are not on the speaking program and are just there to enjoy a meal with friends .
@ @ @ @ @ @ @ importance of the Federalist Society , which plays an outsize role in selecting President Trump ’ s judicial nominees , and in maintaining ideological discipline among conservative legal elites .
Research shows that sitting justices are “ very prestige hungry ” and they “ care a lot about their reputations , ” according to Maya Sen , a professor at Harvard ’ s Kennedy School of Government who studies the Supreme Court .
The justices , Sen told me , “ want to be viewed well by their peers ” within the elite @ @ @ @ @ @ @ privileged cohort that includes many “ liberal academics.
” The Federalist Society , moreover , was born out of many conservative legal elites ’ perception that their ideas were not taken seriously within the legal profession and especially within academia .
As then-Solicitor General Ted Olson told the Federalist Society in 2002 , “ the best measure of our success is the sound of gnashing teeth and lamentations by those who feel threatened ” — he then proposed a toast to the society “ for sowing such delightful despair among the legal , @ @ @ @ @ @ @ same event , Federalist Society president Eugene B. Meyer complained that conservatives on law school campuses “ have trouble finding faculty advisers ” and that “ certain ideas are not being heard in law schools.
” The Federalist Society , according to Sen , creates a “ safe space ” for conservative lawyers — up to and including sitting Supreme Court justices — where they can feel professionally validated without having to seek such validation from the kind of liberal thinkers who often fill the pages of the Harvard Law Review .
The @ @ @ @ @ @ @ plum jobs to loyal conservatives , but also by satiating its members ’ very human need to feel loved and respected by their professional colleagues — by surrounding those members with colleagues who love and respect people who advance conservative causes .
Amanda Hollis-Brusky , a politics professor at Pomona College and the author of Ideas with Consequences : The Federalist Society and the Conservative Counterrevolution , agreed that Roberts ’ s apparent distance from the Federalist Society distinguishes him from his fellow Republican justices , but she added that she ’ s @ @ @ @ @ @ @ relationship with the powerful conservative organization is a “ cause or an effect ” of the fact that he sometimes votes to the left of justices like Alito or Kavanaugh .
Hollis-Brusky pointed to Roberts ’ s vote to uphold most of the Affordable Care Act in NFIB v. Sebelius ( 2012 ) as the “ first time that Roberts deviated from what was clearly the Federalist Society ’ s preferred outcome.
” Roberts ’ s decision to keep Obamacare alive , she says , may have created a rift between the chief @ @ @ @ @ @ @ rift forms , it can be self-reinforcing .
Roberts ’ s vote at NFIB may have alienated him from conservative legal elites , but that makes it less likely that he ’ ll seek validation from them in the future , which in turn makes it less likely that he ’ ll vote with his fellow Republicans .
Hollis-Brusky also pointed to another factor that may drive Roberts ’ s occasional flirtations with the left .
Justice Kennedy , she noted , voted more conservatively when Justice Sandra Day O ’ Connor was @ @ @ @ @ @ @ justice — the justice in the Court ’ s ideological center — than he did when Kennedy took up the “ mantle ” of the swing vote .
It ’ s possible that Roberts feels the same pressure now that he ’ s at the Court ’ s center .
And this pressure may be accentuated because of his role as chief justice .
It is , after all , the “ Roberts Court , ” not the “ Alito Court ” or the “ Kavanaugh Court , ” that historians will write @ @ @ @ @ @ @ an era of unbridled judicial partisanship .
Yet , whatever the reason for Roberts ’ s relative moderation , there are some outward signs that Roberts ’ s own Republican colleagues view him as an unsteady ally .
When the term began , New York State Rifle & Pistol Association v. City of New York appeared likely to be a landmark Second Amendment case that would expand the scope of that amendment well beyond its current bounds , but the case fizzled due to a jurisdictional problem and wound up having little to @ @ @ @ @ @ @ , Alito , Gorsuch , and Kavanaugh have all , at various times , called for the Court to take a more expansive approach to the Second Amendment .
And , when the New York State Rifle case reached its anticlimactic conclusion , Kavanaugh even called upon his Court to take up “ one of the several Second Amendment cases with petitions for certiorari now pending before the Court.
” The Court decided to turn away all these cases .
It only takes four votes for the Court to hear a case , @ @ @ @ @ @ @ Gorsuch , and Kavanaugh could have joined together to hear any case they wanted .
It ’ s likely they decided not to hear another guns case because they were unsure if Roberts was on their side .
In several other cases , Justice Alito did not hide his rage at decisions where Roberts joined the liberals .
He claimed that the June Medical decision “ twists the law.
” And , in an unusually angry dissent , Alito described a landmark LGBTQ rights decision , which Roberts joined , as “ deceptive @ @ @ @ @ @ @ which means that Roberts isn ’ t an extremely conservative justice .
On voting rights , in particular , he is as doctrinaire a conservative as they come .
He joined several decisions this term that will make it difficult — and potentially dangerous — for many voters to cast a ballot during the Covid-19 pandemic .
But Roberts , according to Hollis-Brusky , also appears concerned that his Court should not appear to be the “ handmaiden of the Trump administration.
” “ It ’ s not that he ’ s become @ @ @ @ @ @ @ , ” said Hollis-Brusky , but at least he can claim that “ he ’ s beholden to no one.
” Justice Neil Gorsuch , meanwhile , voted with the liberal justices in two major cases : Bostock v. Clayton County , which held that the federal ban on “ sex ” discrimination in employment encompasses anti-LGBTQ discrimination ; and McGirt v. Oklahoma which establishes that a huge swath of land encompassing half the state of Oklahoma is what federal law anachronistically refers to “ Indian country ” — Native American reservations where @ @ @ @ @ @ @ Gorsuch is much more conservative than Roberts .
Indeed , on some important issues , he is probably the most conservative justice to sit on the Supreme Court since the Great Depression .
But Gorsuch is also one of the Court ’ s proudest evangelists for “ textualism , ” the belief that , in his words , a law should be read according to its “ ordinary meaning at the time of its enactment.
” And his commitment to this method of interpreting federal laws sometimes overcomes his commitment to conservatism .
@ @ @ @ @ @ @ an easy case .
As Shannon Minter , legal director of the National Center for Lesbian Rights , told me , “ if it were possible ( which of course it ’ s not ) to disregard the fraught social and political context of the case , Bostock would be an entirely unremarkable decision , doctrinally speaking.
” The case involves Title VII of the Civil Rights Act of 1964 , which prohibits employment discrimination “ because of [ an employee ’ s ] race , color , religion , sex , or @ @ @ @ @ @ @ Bostock , a ban on “ sex ” discrimination necessarily encompasses anti-LGBTQ discrimination simply as a matter of textual interpretation : Similarly , if an employer “ fires a transgender person who was identified as a male at birth but who now identifies as a female ” but also “ retains an otherwise identical employee who was identified as female at birth , ” that employer is engaged in sex discrimination .
“ Again , ” Gorsuch wrote , “ the individual employee ’ s sex plays an unmistakable and impermissible role in @ @ @ @ @ @ @ attended the oral argument in R.G .
& G.R .
Harris Funeral Homes Inc. v. EEOC , a companion case to Bostock that was argued the same day , you could watch Gorsuch ’ s struggle between his textualist methodology and his conservative political views play out in real time .
“ Assume for the moment I ’ m ... with you on the textual evidence , ” Gorsuch told the American Civil Liberties Union lawyer arguing in favor of transgender rights .
Should courts “ take into consideration the massive social upheaval @ @ @ @ @ @ @ judicial decision prohibiting anti-LGBTQ employment discrimination ?
Ultimately , however , Gorsuch ’ s commitment to textualism overcame his apparent belief that LGBTQ equality could trigger “ massive social upheaval.
” A similar dynamic played out in McGirt , where the state of Oklahoma claimed that if half of its lands were held to be tribal reservations , such a decision “ would decimate state and local budgets ” because “ the State generally lacks the authority to tax Indians in Indian country.
” But Gorsuch wrote that such consequences are irrelevant .
@ @ @ @ @ @ @ ” according to Gorsuch ’ s majority opinion in McGirt , “ and not a license for us to disregard the law.
” The fact that Gorsuch is so committed to a particular methodology that he ’ s sometimes willing to break with his fellow Republicans is significant , but it would be an enormous mistake for liberals to think of Gorsuch as an ally , or even as a swing vote .
At the time of his nomination to the Supreme Court , Sen told me , empirical studies placed Gorsuch at @ @ @ @ @ @ @ colleagues on the federal bench .
And this rough empirical measure misses much of the nuance of his opinions .
When Gorsuch swings right , he frequently swings hard to the right .
For example , he is the strongest proponent of the “ right to contract ” — often a euphemism for employers ’ right to exploit their employees — to sit on the Supreme Court since the Franklin Roosevelt administration .
In the past , this discredited “ right ” was used to strike down minimum wage laws and laws protecting @ @ @ @ @ @ @ many other things , on the theory that the right to contract includes the “ right ” to agree to be paid insignificant wages , or the “ right ” to sign away your ability to join a union .
So long as the Court ’ s current panel of nine justices sits , in other words , conservatives have a lot to gain — and liberals have a lot to fear — from the Supreme Court .
The lesson of this past term is not that the Court is liberal .
It @ @ @ @ @ @ @ to win every single case they bring , no matter how weak their arguments .
Every day at Vox , we aim to answer your most important questions and provide you , and our audience around the world , with information that has the power to save lives .
Our mission has never been more vital than it is in this moment : to empower you through understanding .
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Last October, when the Supreme Court began its term, liberals had good reason to be despondent.
The Court’s most recent term, which ended Thursday, was the first full term since Justice Brett Kavanaugh, a staunch conservative, replaced his more moderate predecessor Justice Anthony Kennedy. It was also the first term where Kavanaugh helped select every case that would be heard by the justices.
By all outward signs, the Court’s conservative majority approached its docket like they were children turned loose in a toy store. The Court planned to hear a case that presented an existential threat to the right to an abortion. It seemed likely to shut down the Deferred Action for Childhood Arrivals (DACA) program — which benefits hundreds of thousands of immigrants — potentially doing so permanently, so that no future president could revive it. And the Court appeared ready to expand the Second Amendment, a longtime project of Kavanaugh’s.
In the end, the Court took a far more measured approach to each of these cases. The right to terminate a pregnancy survives, although Chief Justice John Roberts signaled pretty clearly that it is unlikely to survive much longer. DACA also survives, although only due to a paperwork error that the Trump administration may correct. The guns case ended, not with a bang but with a whimper.
This is still an extremely conservative Supreme Court. The just-completed term was a disaster for voting rights. It imposed significant new limits on Congress’s ability to investigate President Trump. The religious right walked away with several big victories. The Court opened up a new front in the war on Obamacare.
But the Court also showed that there is at least some daylight between its interpretations of the law and the policy preferences of the Republican Party.
A partial explanation for the liberal victories this term is that conservative advocates got ahead of their skis. As Brendan Nyhan, a professor of government at Dartmouth College, wrote in 2015 — the last time the Court had a surprisingly liberal term — “the court’s recent decisions may reflect a change in the cases being considered by the court rather than a shift in the preferences of the justices.”
When the Court moves rightward, conservative advocates are more likely to bring dubious cases — and conservative lawmakers are more likely to enact laws of dubious constitutionality — out of a belief that an ideologically sympathetic Court is likely to rule in their favor. Liberal lawyers, meanwhile, will be more likely to avoid federal court unless they are sure their arguments are airtight. As a result, the Supreme Court will tend to hear weaker claims from conservatives and stronger claims from liberals.
Additionally, at least two members of the Court — Chief Justice Roberts and Justice Neil Gorsuch — do not always share the same ideological commitments as their fellow Republican justices. Roberts is less active with movement conservatism than his four most conservative colleagues. And Gorsuch’s commitment to a particular method of deciding cases sometimes overrides his conservative preferences.
Because Republicans control only five of the nine seats on the Supreme Court, conservative advocates often need to win the vote of every single conservative justice in order to prevail. So if either Roberts or Gorsuch is unpersuaded by a conservative argument, that’s frequently enough to hand a loss to that argument’s proponents.
Conservatives brought several exceedingly weak cases to the Supreme Court this term
Here’s a good rule of thumb for new law school graduates: It’s a bad idea to make a case that is literally identical to one that you recently lost in the Supreme Court. Yet that’s more or less what anti-abortion advocates did in June Medical Services v. Russo.
In Whole Woman’s Health v. Hellerstedt (2016), the Supreme Court struck down a Texas law requiring abortion providers to obtain admitting privileges at a nearby hospital — a credential that is very difficult for abortion doctors to obtain and that does little or nothing to improve health outcomes. June Medical asked the Supreme Court to uphold a Louisiana law requiring abortion providers to obtain admitting privileges at a nearby hospital. As Justice Stephen Breyer noted in his June Medical opinion, the two laws were “almost word-for-word identical.”
Conservatives undoubtedly hoped that, with Kennedy, who joined the majority in Whole Woman’s Health, no longer on the Court, they could get a different outcome in an interchangeable case. But Roberts was unwilling to endorse such an attempt to treat his Court as a purely political body. “The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law,” Roberts concluded in an opinion that reluctantly agreed to strike down the Louisiana law.
Much of Roberts’s opinion laid out his objections to the Court’s existing abortion rights cases, so Roberts remains likely to uphold significant restrictions on abortion in the future. He’s just not willing to uphold the exact same law that the Court struck down a few years earlier.
Similar things can be said about Department of Homeland Security v. Regents of the University of California, where Roberts joined his four liberal colleagues in holding that the Trump administration didn’t complete the proper paperwork when it decided to terminate the DACA program, which allows nearly 700,000 undocumented immigrants to live and work in the United States. The nation’s highest court typically does not exist to excuse high-level government officials who do not want to do their homework.
If the Trump administration wanted to end DACA, it should have just fixed its paperwork error, rather than spending years litigating this case through the federal court system.
And then there’s Trump v. Vance, where the Supreme Court held that the president of the United States does not enjoy total immunity from state criminal investigations. Many of Trump’s legal arguments in this case were so absurd that they bordered on self-parody.
Here is Trump's lawyer, William Consovoy, telling Judge Denny Chin that if Trump were to shoot someone on fifth avenue, he could not be criminally investigated while in office.
Very normal argument. pic.twitter.com/xlDBwmCUnR — Erick Fernandez (@ErickFernandez) October 23, 2019
None of this means that conservative lawyers have nothing to gain from bringing audacious arguments to a conservative Court. Twenty years ago, many justices believed that it is unconstitutional for the government to fund religious schools. But in Espinoza v. Montana Department of Revenue, the Supreme Court held this term that states are required to fund such schools if they provide similar funding to secular private schools.
Similarly, in Trump v. Mazars, the president sought new protections against congressional immunity that were entirely at odds with existing precedents. He won anyway, although the Court didn’t go quite as far as Trump’s lawyers asked it to go.
Nor did conservatives really lose anything meaningful in June Medical, Regents, or Vance. Roberts is still likely to uphold nearly any anti-abortion law that’s brought before him. The paperwork error in Regents can be cured. And Vance largely just maintained a status quo that says the president isn’t completely above the law.
But if conservatives ask for too much, too fast from this Supreme Court, they will eventually find the justices’ limits.
Roberts is very conservative, but he’s divorced himself somewhat from the conservative movement
In the fall of 2007, Chief Justice Roberts had just celebrated the second anniversary of his appointment as the nation’s highest-ranking judge when he delivered the “7th Annual Barbara K. Olson Memorial Lecture” to the conservative Federalist Society. According to the society’s website, that was the last time the chief justice spoke to this organization, which forms the locus of legal conservatism within the United States.
In this sense, Roberts is quite unlike his four Republican colleagues. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh are all frequent speakers at the Federalist Society’s events — both Gorsuch and Kavanaugh took a victory lap at the society’s annual black-tie dinner not long after their confirmation to the Supreme Court. Indeed, the Court’s rightmost justices frequently attend this dinner even when they are not on the speaking program and are just there to enjoy a meal with friends.
It’s hard to minimize the importance of the Federalist Society, which plays an outsize role in selecting President Trump’s judicial nominees, and in maintaining ideological discipline among conservative legal elites.
Research shows that sitting justices are “very prestige hungry” and they “care a lot about their reputations,” according to Maya Sen, a professor at Harvard’s Kennedy School of Government who studies the Supreme Court. The justices, Sen told me, “want to be viewed well by their peers” within the elite echelons of the legal profession, a privileged cohort that includes many “liberal academics.”
The Federalist Society, moreover, was born out of many conservative legal elites’ perception that their ideas were not taken seriously within the legal profession and especially within academia. As then-Solicitor General Ted Olson told the Federalist Society in 2002, “the best measure of our success is the sound of gnashing teeth and lamentations by those who feel threatened” — he then proposed a toast to the society “for sowing such delightful despair among the legal, political and academic establishment.”
At the same event, Federalist Society president Eugene B. Meyer complained that conservatives on law school campuses “have trouble finding faculty advisers” and that “certain ideas are not being heard in law schools.”
The Federalist Society, according to Sen, creates a “safe space” for conservative lawyers — up to and including sitting Supreme Court justices — where they can feel professionally validated without having to seek such validation from the kind of liberal thinkers who often fill the pages of the Harvard Law Review.
The society succeeds not just by doling out plum jobs to loyal conservatives, but also by satiating its members’ very human need to feel loved and respected by their professional colleagues — by surrounding those members with colleagues who love and respect people who advance conservative causes.
Amanda Hollis-Brusky, a politics professor at Pomona College and the author of Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution, agreed that Roberts’s apparent distance from the Federalist Society distinguishes him from his fellow Republican justices, but she added that she’s not sure if Roberts’s cooler relationship with the powerful conservative organization is a “cause or an effect” of the fact that he sometimes votes to the left of justices like Alito or Kavanaugh.
Hollis-Brusky pointed to Roberts’s vote to uphold most of the Affordable Care Act in NFIB v. Sebelius (2012) as the “first time that Roberts deviated from what was clearly the Federalist Society’s preferred outcome.” Roberts’s decision to keep Obamacare alive, she says, may have created a rift between the chief justice and the society.
Once a rift forms, it can be self-reinforcing. Roberts’s vote at NFIB may have alienated him from conservative legal elites, but that makes it less likely that he’ll seek validation from them in the future, which in turn makes it less likely that he’ll vote with his fellow Republicans.
Hollis-Brusky also pointed to another factor that may drive Roberts’s occasional flirtations with the left. Justice Kennedy, she noted, voted more conservatively when Justice Sandra Day O’Connor was the Court’s “swing” justice — the justice in the Court’s ideological center — than he did when Kennedy took up the “mantle” of the swing vote. It’s possible that Roberts feels the same pressure now that he’s at the Court’s center. And this pressure may be accentuated because of his role as chief justice.
It is, after all, the “Roberts Court,” not the “Alito Court” or the “Kavanaugh Court,” that historians will write about if this age is remembered as an era of unbridled judicial partisanship.
Yet, whatever the reason for Roberts’s relative moderation, there are some outward signs that Roberts’s own Republican colleagues view him as an unsteady ally.
When the term began, New York State Rifle & Pistol Association v. City of New York appeared likely to be a landmark Second Amendment case that would expand the scope of that amendment well beyond its current bounds, but the case fizzled due to a jurisdictional problem and wound up having little to say about gun rights.
Justices Thomas, Alito, Gorsuch, and Kavanaugh have all, at various times, called for the Court to take a more expansive approach to the Second Amendment. And, when the New York State Rifle case reached its anticlimactic conclusion, Kavanaugh even called upon his Court to take up “one of the several Second Amendment cases with petitions for certiorari now pending before the Court.” The Court decided to turn away all these cases.
It only takes four votes for the Court to hear a case, which means that Thomas, Alito, Gorsuch, and Kavanaugh could have joined together to hear any case they wanted. It’s likely they decided not to hear another guns case because they were unsure if Roberts was on their side.
In several other cases, Justice Alito did not hide his rage at decisions where Roberts joined the liberals. He claimed that the June Medical decision “twists the law.” And, in an unusually angry dissent, Alito described a landmark LGBTQ rights decision, which Roberts joined, as “deceptive” and “preposterous.”
None of which means that Roberts isn’t an extremely conservative justice. On voting rights, in particular, he is as doctrinaire a conservative as they come. He joined several decisions this term that will make it difficult — and potentially dangerous — for many voters to cast a ballot during the Covid-19 pandemic.
But Roberts, according to Hollis-Brusky, also appears concerned that his Court should not appear to be the “handmaiden of the Trump administration.”
“It’s not that he’s become a raging liberal, by any means,” said Hollis-Brusky, but at least he can claim that “he’s beholden to no one.”
Gorsuch has competing ideological commitments
Justice Neil Gorsuch, meanwhile, voted with the liberal justices in two major cases: Bostock v. Clayton County, which held that the federal ban on “sex” discrimination in employment encompasses anti-LGBTQ discrimination; and McGirt v. Oklahoma, which establishes that a huge swath of land encompassing half the state of Oklahoma is what federal law anachronistically refers to “Indian country” — Native American reservations where tribal governments retain considerable sovereign authority.
Gorsuch is much more conservative than Roberts. Indeed, on some important issues, he is probably the most conservative justice to sit on the Supreme Court since the Great Depression. But Gorsuch is also one of the Court’s proudest evangelists for “textualism,” the belief that, in his words, a law should be read according to its “ordinary meaning at the time of its enactment.” And his commitment to this method of interpreting federal laws sometimes overcomes his commitment to conservatism.
From a textualist perspective, Bostock was an easy case. As Shannon Minter, legal director of the National Center for Lesbian Rights, told me, “if it were possible (which of course it’s not) to disregard the fraught social and political context of the case, Bostock would be an entirely unremarkable decision, doctrinally speaking.”
The case involves Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of [an employee’s] race, color, religion, sex, or national origin.” As Gorsuch wrote in Bostock, a ban on “sex” discrimination necessarily encompasses anti-LGBTQ discrimination simply as a matter of textual interpretation:
Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.
Similarly, if an employer “fires a transgender person who was identified as a male at birth but who now identifies as a female” but also “retains an otherwise identical employee who was identified as female at birth,” that employer is engaged in sex discrimination. “Again,” Gorsuch wrote, “the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”
Yet if you attended the oral argument in R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, a companion case to Bostock that was argued the same day, you could watch Gorsuch’s struggle between his textualist methodology and his conservative political views play out in real time. “Assume for the moment I’m ... with you on the textual evidence,” Gorsuch told the American Civil Liberties Union lawyer arguing in favor of transgender rights. Should courts “take into consideration the massive social upheaval that would be entailed” in a judicial decision prohibiting anti-LGBTQ employment discrimination?
Ultimately, however, Gorsuch’s commitment to textualism overcame his apparent belief that LGBTQ equality could trigger “massive social upheaval.”
A similar dynamic played out in McGirt, where the state of Oklahoma claimed that if half of its lands were held to be tribal reservations, such a decision “would decimate state and local budgets” because “the State generally lacks the authority to tax Indians in Indian country.”
But Gorsuch wrote that such consequences are irrelevant. “Dire warnings are just that,” according to Gorsuch’s majority opinion in McGirt, “and not a license for us to disregard the law.”
The fact that Gorsuch is so committed to a particular methodology that he’s sometimes willing to break with his fellow Republicans is significant, but it would be an enormous mistake for liberals to think of Gorsuch as an ally, or even as a swing vote.
At the time of his nomination to the Supreme Court, Sen told me, empirical studies placed Gorsuch at the 85th percentile of conservatism among his colleagues on the federal bench. And this rough empirical measure misses much of the nuance of his opinions.
When Gorsuch swings right, he frequently swings hard to the right. For example, he is the strongest proponent of the “right to contract” — often a euphemism for employers’ right to exploit their employees — to sit on the Supreme Court since the Franklin Roosevelt administration. In the past, this discredited “right” was used to strike down minimum wage laws and laws protecting workers’ right to unionize, among many other things, on the theory that the right to contract includes the “right” to agree to be paid insignificant wages, or the “right” to sign away your ability to join a union.
So long as the Court’s current panel of nine justices sits, in other words, conservatives have a lot to gain — and liberals have a lot to fear — from the Supreme Court. The lesson of this past term is not that the Court is liberal. It’s that conservatives cannot expect to win every single case they bring, no matter how weak their arguments.


vox--2020-07-12--“Usually, trans women are side characters”

The very first time Eve Lindley was in a room with all of her costars on the AMC series Dispatches From Elsewhere was for a sexual harassment training seminar .
She walked in , ready for her first lead role in anything ever , and found herself sitting with Jason Segel , with André Benjamin , with Sally Field .
First , she freaked out inside .
Then , she had a different revelation .
“ I was looking around at the cast , really feeling myself .
I was , like , ‘ I ’ m here .
I @ @ @ @ @ @ @ just did the table read .
This is going to be the best !
’ And then I ’ m looking around , and I ’ m , like , ‘ This is peculiar .
There is no young , hot girl on this show .
How are men going to watch this ?
No one is going to watch this !
Who is the hot girl ?
’ ” she recalls .
“ It took me a second , and then I was , like , ‘ Oh my God .
I @ @ @ @ @ @ @ was not prepared for that.
” Dispatches From Elsewhere is just the 12th role Lindley has ever played on camera .
That she ’ s playing a romantic lead is impressive in and of itself ; that she brings so much presence and spark to the show is even more striking .
Her role as the romantic female lead of a miniseries about four people drawn into a mysterious , surreal game playing out on the streets of Philadelphia could have felt undercooked , but she brings the character to vibrant life .
@ @ @ @ @ @ @ From Elsewhere is hugely significant .
Though her character , Simone , is not the series ’ protagonist ( that honor goes to Peter , played by Segel , who created the show and wrote and directed several episodes ) , she is his primary love interest .
And because both Lindley and Simone are trans , she ’ s making history by default .
“ Usually , trans women are side characters .
I was a funny character actress , and I never had to think about being pretty on camera or @ @ @ @ @ @ @ camera , ” she says .
“ It ’ s weird .
I ’ ve never kissed on camera before .
[ I asked Jason ] ‘ What do we do ?
Do we just do it ?
’ And Jason was , like , ‘ What ?
’ He ’ s kissed every A-List actress under the sun !
Okay .
Great .
This is wonderful .
No pressure.
” How Dispatches From Elsewhere captures the occasional alienation of transness Dispatches From Elsewhere , an anthological miniseries that will tell different stories @ @ @ @ @ @ @ season with characters in search of a purpose .
Feeling lost in and isolated by modern life , they begin to come together via an elaborate “ game , ” with symbols that guide them deeper and deeper into an alternate reality overlaid atop our own .
The first four episodes of Dispatches From Elsewhere ’ s 10-episode debut season each take a close-up look at one of the four main characters .
The second focuses on Lindley ’ s character , Simone , and opens with a sequence that captures something essential @ @ @ @ @ @ @ makes her way down a long alley , only to stumble upon a Pride parade .
She steps back from the parade , her voice caught in her throat .
Someone hands her a loudspeaker to shout whatever truth she carries deep within her heart , but she bails , running back the way she came , away from the parade , truth left unspoken .
At the start of this sequence , the show ’ s most mysterious character — a Wizard of Oz-esque narrator played by Richard E. Grant , who @ @ @ @ @ @ @ — invites viewers to imagine themselves as Simone .
He later guides us through her childhood , as she ’ s assigned male at birth then transitions in adolescence ( a journey that ’ s roughly similar to Lindley ’ s ) .
It is the first time the series directly acknowledges that Simone is trans , and it is also very nearly the last .
It comes up only a handful of times in later episodes , largely in episode eight , when Simone and Peter go on a date .
Simone @ @ @ @ @ @ @ to her story .
She is not described in the terms that mainstream fiction typically uses to describe transness ( “ born in the wrong body , ” “ always knew she should be a girl , ” etc. )
.
Instead , Grant ’ s narrator offers this elegant metaphor : “ She thought she had been invited to the party by mistake.
” It ’ s elegant because it feels , to me , specific to transness — to the idea that you showed up somewhere and realized all your expectations @ @ @ @ @ @ @ a completely different event , but you had to pretend you knew exactly what you were doing all along .
Yet it also feels much more universal .
We ’ ve all experienced moments where we felt out of space and time in our own lives , disconnected from some fundamental self who flits just out of view .
“ I was so sure about this one thing , and it was always a no-brainer .
I always knew it and advocated for it and pushed for it , and it was a @ @ @ @ @ @ @ until I was 18 to medically begin transitioning .
And I think when you ’ re really sure about one thing about yourself , it ’ s possible to let [ dealing with other personal issues ] fall to the wayside , ” Lindley says .
“ So then you get to the other side of this hurdle that you spent your whole life wishing for and hoping for , and it takes you a minute to even realize that you ’ re on the other side of it.
” In my own @ @ @ @ @ @ @ likened this process of going through transition and realizing you still have so much to work on to the effect of a thick rug .
Before you come out , it ’ s possible to walk around on the rug and not be fully aware of the condition of the floor beneath it .
Maybe a few spots feel saggy or uneven , but for the most part , the rug hides all sins .
Pull up the rug , however , and you ’ ll see all of the places where the @ @ @ @ @ @ @ goes with gender dysphoria , the condition in which a person ’ s gender identity differs from the gender they were assigned at birth .
When you ’ re in its throes , that disconnect is all you can see .
The result can be that a whole bunch of other things , sometimes painful or long-buried feelings , are unearthed .
But once you start to treat gender dysphoria ( typically with hormones ) , your emotional experiences of the world become so much more potent and real .
Lindley likes that @ @ @ @ @ @ @ Simone ’ s journey .
Hers is not a story about transitioning .
It ’ s a story about the messy work of fixing the floor after transition .
“ Home is in you , ” she says .
“ You always had the power to go back to Kansas , [ like Dorothy in The Wizard of Oz ] .
You just had to figure it out for yourself .
This is my home .
This body .
So now that it ’ s been remodeled or whatever , what do I @ @ @ @ @ @ @ she adds , “ The vast majority of what ’ s happening and what transition is , is actually in your head — the mental changes and the emotional changes .
And the physical changes mirror what ’ s going on in your head.
” Segel didn ’ t have a real sense that he was making a momentous choice when he decided to write Simone as a trans woman .
He initially wanted to create a central quartet of characters who were “ diametrically opposed , ” he says , and then @ @ @ @ @ @ @ and understanding in the audience for people with such radically different life experiences .
“ Transitioning , both literally and as a metaphor , was important territory for me to cover .
You make these decisions that you know are the right next step but are hugely important decisions , ” Segel says .
“ A part of what we tend to think is that when we get to the other side of that decision , all of our problems are going to be solved .
But we find out , ‘ Oh @ @ @ @ @ @ @ and all of my other unresolved shit I brought with me.
’ ” And even if the choice to place a trans woman so close to the center of this story was at least somewhat schematic , once Segel actually auditioned opposite Lindley , he realized there was more depth to the character than he had initially conceived .
“ She finished reading , and it was different than I had pictured the scene .
I was about to give her notes , but then I started to realize that she was doing @ @ @ @ @ @ @ And I said to Eve , ‘ Simone is so much more complicated than I realized.
’ And [ Eve ] said , without missing a beat , ‘ She always is , Jason , ’ ” he says with a laugh .
“ That was the moment where I was , like , ‘ Oh , I found her.
’ ” Lindley remembers that audition as one where she was sure the show ’ s producers would be looking for anybody but her .
She recalls waiting to be called in and @ @ @ @ @ @ @ trans actresses who often go out for the same roles as Lindley exit the room .
“ I was like , ‘ Oh , fabulous , she ’ s getting it .
She is this role .
She is so pretty , ’ ” Lindley says .
“ That was when I realized it was the romantic lead .
So then I was , like , ‘ This is different than anything I ’ ve ever gone in for before .
They are going to want pretty girls .
They are going to @ @ @ @ @ @ @ going to want interesting pretty.
’ ” Lindley began transitioning when she was 18 , at the very least after her voice had dropped .
She lists other trans actresses , actresses who began their transitions in early adolescence , before puberty had changed their bodies very much , as the sorts of performers she figured would be cast as Simone .
Lindley ’ s description of herself as “ interesting pretty ” is inaccurate to my eyes ; I ’ d say she ’ s very passable pretty .
“ Passing , @ @ @ @ @ @ @ , as a trans person , with cis people of the same gender , is a fraught concept within trans spaces ( I ’ ve written about it ) .
Most of the trans woman actors who have become even somewhat successful — folks like Laverne Cox and Jamie Clayton — are able to pass to some degree .
But Lindley also says she is misgendered every so often .
I know how misgendering feels and how “ every so often ” can feel like “ every single day.
” And our dynamic @ @ @ @ @ @ @ “ Oh , I don ’ t pass , ” and I assure her , “ Sweetie , you absolutely do ” — is a way that trans women boost each other up while running themselves down because if there is one thing I know to be true , it is that I do not pass and never will , and everybody is just being nice to me if they say “ ma ’ am.
” Lindley even recognized this trans lady conversational tendency in herself as we chatted .
“ When I @ @ @ @ @ @ @ am usually fine .
When I compare myself to trans women ... they are all fucking beautiful , like goddesses , ” she says .
This is just a thing trans women do .
But it ’ s also a thing cis women do , and I would wager that if you are an actress , someone whose literal career involves looking a certain way and having your appearance measured against other women in your field , the urge to compare yourself to others only intensifies .
The gap between the person you @ @ @ @ @ @ @ perceived to be is something trans women maybe understand on a visceral level , thanks to dysphoria , but everybody else understands it at least a little bit .
However unwittingly , that ’ s what Segel tapped into with the character of Simone , who starts out as someone who is uncertain of herself and her place in the world and becomes someone who falls in love , builds a life that makes her happy , and comes to realize her true potential .
These are all emotions Lindley plays beautifully .
@ @ @ @ @ @ @ ’ s scripts were smarter than most she ’ s read about trans characters — she says she had very few notes for Segel about how the series should portray Simone — she was still able to bring her expertise with the lived trans experience when it came time to film the show .
“ There were just these little sorts of moments that didn ’ t feel right , like in flashback they had Simone as like ‘ Simon , ’ ” she says , referring to a frequent fictional trope that @ @ @ @ @ @ @ their male names and which rarely happens in real life .
“ Simone is a very creative girl !
When she opened up this part of the world or when she opened up the opportunity to be able to choose a name , she would not simply add an ‘ e ’ to the name that she already had.
” What comes next for a trans actor is always an open question Throughout our conversation — which transpired over an hour-and-a-half at a coffee shop near Vox Media ’ s lower Manhattan offices @ @ @ @ @ @ @ From Elsewhere was about to debut , before it was an Emmy hopeful , and before Covid-19 quarantines — Lindley frequently worries that she is saying too little and too much .
This is the first time she has ever been interviewed for a profile .
All of the other interviews she ’ s done for the show have been alongside its other stars , and she feels at once the burden of being The Trans Actress but also a desire to not be so pigeonholed as to be written about as The @ @ @ @ @ @ @ ’ s asking me how I feel about things .
I ’ m frankly very shocked that anyone gives a crap about how I feel or what I think , ” she says .
“ But also nothing has happened yet .
This show could tank , and I could go back to normal , and that would be great .
I still had a really amazing summer [ working on the show ] .
But it would also be really cool if it , like , did the other thing.
” And @ @ @ @ @ @ @ believe Lindley ’ s fear that this chapter of her life is already over is unfounded .
Dispatches wasn ’ t a huge hit , but it received solid critical notices , and it ’ s exactly the sort of thing that will become better known once it arrives on streaming platforms .
As our conversation winds down , I ask her what kinds of roles and characters she would like to play in the future , and she says she wants to do more stunts .
“ I once had a dream @ @ @ @ @ @ @ into laughter .
“ A very vivid dream .
I was flying in St. Louis .
I just knew it was St. Louis in the dream .
I was flying , but [ in an arc that wasn ’ t ] straight .
There was a lot of getting somewhere and then being pulled back .
I ’ ve always clung to that dream and been , like , ‘ That ’ s me filming something in St. Louis where I ’ m like on a harness flying.
’ I hope that I @ @ @ @ @ @ @ some point.
” I hope she makes it to St. Louis .
But it ’ s easy to see why she might be pessimistic .
Even if Dispatches From Elsewhere results in a highly deserved Emmy nomination for her performance , she ’ s going to head back out into an audition field where she is put up for the same handful of parts afforded to trans actresses in hopes that she might be cast in one .
( She has yet to land another since the show ended . )
Even if @ @ @ @ @ @ @ for a cis actress , there will surely be a discussion after she ’ s cast as to whether the part should be rewritten to be explicitly trans .
And there is every chance that Dispatches From Elsewhere will mark the sole time she ever gets to play a romantic lead , at least with a cis guy .
But there ’ s a way Dispatches From Elsewhere comes alive when Lindley is on-screen that makes me think her worries are misplaced .
She has a star quality to her , even pulling @ @ @ @ @ @ @ a too-big sweater .
And I believe that star quality will make a lasting impression on the tiny fraction of the American population that watched the show when it was airing and with the larger number of viewers it will find when it inevitably hits Netflix .
But it ’ s not hard to achieve some sort of new career milestone and assume that it ’ s a peak , not a stepping stone .
This is especially true for anybody in a creative field , where the next paycheck is never assured @ @ @ @ @ @ @ I think , for those of us who also feel the hidden ghost of some other life waiting to suck us back down into its maw .
I hope that in writing this , I didn ’ t reduce Lindley to The Trans Actress , but I also know how hard it is to escape that framing .
If anyone can , it will be her .
“ [ My transness ] is a part of me , but there are so many other parts , ” Lindley says .
“ I feel @ @ @ @ @ @ @ desperate for people to see the other parts because the other parts are kind of more interesting or make us who we really are , as opposed to this genetic disposition.
” Every day at Vox , we aim to answer your most important questions and provide you , and our audience around the world , with information that has the power to save lives .
Our mission has never been more vital than it is in this moment : to empower you through understanding .
Vox ’ s work is reaching more @ @ @ @ @ @ @ brand of explanatory journalism takes resources — particularly during a pandemic and an economic downturn .
Your financial contribution will not constitute a donation , but it will enable our staff to continue to offer free articles , videos , and podcasts at the quality and volume that this moment requires .
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The very first time Eve Lindley was in a room with all of her costars on the AMC series Dispatches From Elsewhere was for a sexual harassment training seminar. She walked in, ready for her first lead role in anything ever, and found herself sitting with Jason Segel, with André Benjamin, with Sally Field.
First, she freaked out inside. Then, she had a different revelation.
“I was looking around at the cast, really feeling myself. I was, like, ‘I’m here. I’ve done the fittings. We just did the table read. This is going to be the best!’ And then I’m looking around, and I’m, like, ‘This is peculiar. There is no young, hot girl on this show. How are men going to watch this? No one is going to watch this! Who is the hot girl?’” she recalls.
“It took me a second, and then I was, like, ‘Oh my God. I’m the hot girl.’ I was not prepared for that.”
Dispatches From Elsewhere is just the 12th role Lindley has ever played on camera. That she’s playing a romantic lead is impressive in and of itself; that she brings so much presence and spark to the show is even more striking. Her role as the romantic female lead of a miniseries about four people drawn into a mysterious, surreal game playing out on the streets of Philadelphia could have felt undercooked, but she brings the character to vibrant life.
And Lindley’s presence on Dispatches From Elsewhere is hugely significant. Though her character, Simone, is not the series’ protagonist (that honor goes to Peter, played by Segel, who created the show and wrote and directed several episodes), she is his primary love interest. And because both Lindley and Simone are trans, she’s making history by default.
“Usually, trans women are side characters. I was a funny character actress, and I never had to think about being pretty on camera or being intimate on camera or kissing on camera,” she says. “It’s weird. I’ve never kissed on camera before. [I asked Jason] ‘What do we do? Do we just do it?’ And Jason was, like, ‘What?’ He’s kissed every A-list actress under the sun! Okay. Great. This is wonderful. No pressure.”
How Dispatches From Elsewhere captures the occasional alienation of transness
Dispatches From Elsewhere, an anthological miniseries that will tell different stories with each season, begins its first season with characters in search of a purpose. Feeling lost in and isolated by modern life, they begin to come together via an elaborate “game,” with symbols that guide them deeper and deeper into an alternate reality overlaid atop our own.
The first four episodes of Dispatches From Elsewhere’s 10-episode debut season each take a close-up look at one of the four main characters. The second focuses on Lindley’s character, Simone, and opens with a sequence that captures something essential about the process of transition.
Simone makes her way down a long alley, only to stumble upon a Pride parade. She steps back from the parade, her voice caught in her throat. Someone hands her a loudspeaker to shout whatever truth she carries deep within her heart, but she bails, running back the way she came, away from the parade, truth left unspoken.
At the start of this sequence, the show’s most mysterious character — a Wizard of Oz-esque narrator played by Richard E. Grant, who might hold the secrets of the universe — invites viewers to imagine themselves as Simone. He later guides us through her childhood, as she’s assigned male at birth then transitions in adolescence (a journey that’s roughly similar to Lindley’s).
It is the first time the series directly acknowledges that Simone is trans, and it is also very nearly the last. It comes up only a handful of times in later episodes, largely in episode eight, when Simone and Peter go on a date. Simone’s identity is not particularly central to her story. She is not described in the terms that mainstream fiction typically uses to describe transness (“born in the wrong body,” “always knew she should be a girl,” etc.). Instead, Grant’s narrator offers this elegant metaphor: “She thought she had been invited to the party by mistake.”
It’s elegant because it feels, to me, specific to transness — to the idea that you showed up somewhere and realized all your expectations were wrong and you had prepared for a completely different event, but you had to pretend you knew exactly what you were doing all along.
Yet it also feels much more universal. We’ve all experienced moments where we felt out of space and time in our own lives, disconnected from some fundamental self who flits just out of view.
“I was so sure about this one thing, and it was always a no-brainer. I always knew it and advocated for it and pushed for it, and it was a hard thing and I had to wait until I was 18 to medically begin transitioning. And I think when you’re really sure about one thing about yourself, it’s possible to let [dealing with other personal issues] fall to the wayside,” Lindley says.
“So then you get to the other side of this hurdle that you spent your whole life wishing for and hoping for, and it takes you a minute to even realize that you’re on the other side of it.”
In my own experience transitioning, I’ve often likened this process of going through transition and realizing you still have so much to work on to the effect of a thick rug. Before you come out, it’s possible to walk around on the rug and not be fully aware of the condition of the floor beneath it. Maybe a few spots feel saggy or uneven, but for the most part, the rug hides all sins.
Pull up the rug, however, and you’ll see all of the places where the floor is rotting away.
So it goes with gender dysphoria, the condition in which a person’s gender identity differs from the gender they were assigned at birth. When you’re in its throes, that disconnect is all you can see. The result can be that a whole bunch of other things, sometimes painful or long-buried feelings, are unearthed. But once you start to treat gender dysphoria (typically with hormones), your emotional experiences of the world become so much more potent and real.
Lindley likes that this awakening is at the center of Simone’s journey. Hers is not a story about transitioning. It’s a story about the messy work of fixing the floor after transition.
“Home is in you,” she says. “You always had the power to go back to Kansas, [like Dorothy in The Wizard of Oz]. You just had to figure it out for yourself. This is my home. This body. So now that it’s been remodeled or whatever, what do I fill it with?”
Later, she adds, “The vast majority of what’s happening and what transition is, is actually in your head — the mental changes and the emotional changes. And the physical changes mirror what’s going on in your head.”
How Eve Lindley landed her breakthrough role
Segel didn’t have a real sense that he was making a momentous choice when he decided to write Simone as a trans woman. He initially wanted to create a central quartet of characters who were “diametrically opposed,” he says, and then work to build a sense of empathy and understanding in the audience for people with such radically different life experiences.
“Transitioning, both literally and as a metaphor, was important territory for me to cover. You make these decisions that you know are the right next step but are hugely important decisions,” Segel says. “A part of what we tend to think is that when we get to the other side of that decision, all of our problems are going to be solved. But we find out, ‘Oh, I took care of one thing and all of my other unresolved shit I brought with me.’”
And even if the choice to place a trans woman so close to the center of this story was at least somewhat schematic, once Segel actually auditioned opposite Lindley, he realized there was more depth to the character than he had initially conceived.
“She finished reading, and it was different than I had pictured the scene. I was about to give her notes, but then I started to realize that she was doing it better than I had pictured. And I said to Eve, ‘Simone is so much more complicated than I realized.’ And [Eve] said, without missing a beat, ‘She always is, Jason,’” he says with a laugh. “That was the moment where I was, like, ‘Oh, I found her.’”
Lindley remembers that audition as one where she was sure the show’s producers would be looking for anybody but her. She recalls waiting to be called in and seeing another of the small number of trans actresses who often go out for the same roles as Lindley exit the room.
“I was like, ‘Oh, fabulous, she’s getting it. She is this role. She is so pretty,’” Lindley says. “That was when I realized it was the romantic lead. So then I was, like, ‘This is different than anything I’ve ever gone in for before. They are going to want pretty girls. They are going to want passable pretty. They are not going to want interesting pretty.’”
Lindley began transitioning when she was 18, at the very least after her voice had dropped. She lists other trans actresses, actresses who began their transitions in early adolescence, before puberty had changed their bodies very much, as the sorts of performers she figured would be cast as Simone.
Lindley’s description of herself as “interesting pretty” is inaccurate to my eyes; I’d say she’s very passable pretty. “Passing,” or being able to blend in, as a trans person, with cis people of the same gender, is a fraught concept within trans spaces (I’ve written about it). Most of the trans woman actors who have become even somewhat successful — folks like Laverne Cox and Jamie Clayton — are able to pass to some degree. But Lindley also says she is misgendered every so often.
I know how misgendering feels and how “every so often” can feel like “every single day.” And our dynamic — the one where Lindley says, “Oh, I don’t pass,” and I assure her, “Sweetie, you absolutely do” — is a way that trans women boost each other up while running themselves down because if there is one thing I know to be true, it is that I do not pass and never will, and everybody is just being nice to me if they say “ma’am.” Lindley even recognized this trans lady conversational tendency in herself as we chatted.
“When I compare myself to cis women, I am usually fine. When I compare myself to trans women ... they are all fucking beautiful, like goddesses,” she says.
This is just a thing trans women do. But it’s also a thing cis women do, and I would wager that if you are an actress, someone whose literal career involves looking a certain way and having your appearance measured against other women in your field, the urge to compare yourself to others only intensifies. The gap between the person you are and the person you’re perceived to be is something trans women maybe understand on a visceral level, thanks to dysphoria, but everybody else understands it at least a little bit.
However unwittingly, that’s what Segel tapped into with the character of Simone, who starts out as someone who is uncertain of herself and her place in the world and becomes someone who falls in love, builds a life that makes her happy, and comes to realize her true potential. These are all emotions Lindley plays beautifully.
And though Lindley says Dispatches From Elsewhere’s scripts were smarter than most she’s read about trans characters — she says she had very few notes for Segel about how the series should portray Simone — she was still able to bring her expertise with the lived trans experience when it came time to film the show.
“There were just these little sorts of moments that didn’t feel right, like in flashback they had Simone as like ‘Simon,’” she says, referring to a frequent fictional trope that sees trans women choose feminized versions of their male names and which rarely happens in real life. “Simone is a very creative girl! When she opened up this part of the world or when she opened up the opportunity to be able to choose a name, she would not simply add an ‘e’ to the name that she already had.”
What comes next for a trans actor is always an open question
Throughout our conversation — which transpired over an hour-and-a-half at a coffee shop near Vox Media’s lower Manhattan offices in early February, back when Dispatches From Elsewhere was about to debut, before it was an Emmy hopeful, and before Covid-19 quarantines — Lindley frequently worries that she is saying too little and too much.
This is the first time she has ever been interviewed for a profile. All of the other interviews she’s done for the show have been alongside its other stars, and she feels at once the burden of being The Trans Actress but also a desire to not be so pigeonholed as to be written about as The Trans Actress.
“Suddenly, everyone’s asking me how I feel about things. I’m frankly very shocked that anyone gives a crap about how I feel or what I think,” she says. “But also nothing has happened yet. This show could tank, and I could go back to normal, and that would be great. I still had a really amazing summer [working on the show]. But it would also be really cool if it, like, did the other thing.” And she laughs.
But I like to believe Lindley’s fear that this chapter of her life is already over is unfounded. Dispatches wasn’t a huge hit, but it received solid critical notices, and it’s exactly the sort of thing that will become better known once it arrives on streaming platforms.
As our conversation winds down, I ask her what kinds of roles and characters she would like to play in the future, and she says she wants to do more stunts.
“I once had a dream ...” Lindley starts, before bursting into laughter. “A very vivid dream. I was flying in St. Louis. I just knew it was St. Louis in the dream. I was flying, but [in an arc that wasn’t] straight. There was a lot of getting somewhere and then being pulled back. I’ve always clung to that dream and been, like, ‘That’s me filming something in St. Louis where I’m like on a harness flying.’ I hope that I get to fly in St. Louis at some point.”
I hope she makes it to St. Louis. But it’s easy to see why she might be pessimistic. Even if Dispatches From Elsewhere results in a highly deserved Emmy nomination for her performance, she’s going to head back out into an audition field where she is put up for the same handful of parts afforded to trans actresses in hopes that she might be cast in one. (She has yet to land another since the show ended.)
Even if she’s awarded a part written for a cis actress, there will surely be a discussion after she’s cast as to whether the part should be rewritten to be explicitly trans. And there is every chance that Dispatches From Elsewhere will mark the sole time she ever gets to play a romantic lead, at least with a cis guy.
But there’s a way Dispatches From Elsewhere comes alive when Lindley is on-screen that makes me think her worries are misplaced. She has a star quality to her, even pulling apart a croissant at a coffeeshop in a too-big sweater. And I believe that star quality will make a lasting impression on the tiny fraction of the American population that watched the show when it was airing and with the larger number of viewers it will find when it inevitably hits Netflix.
But it’s not hard to achieve some sort of new career milestone and assume that it’s a peak, not a stepping stone. This is especially true for anybody in a creative field, where the next paycheck is never assured, and it’s true, I think, for those of us who also feel the hidden ghost of some other life waiting to suck us back down into its maw. I hope that in writing this, I didn’t reduce Lindley to The Trans Actress, but I also know how hard it is to escape that framing. If anyone can, it will be her.
“[My transness] is a part of me, but there are so many other parts,” Lindley says. “I feel like a lot of us are pretty desperate for people to see the other parts because the other parts are kind of more interesting or make us who we really are, as opposed to this genetic disposition.”