USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 77 of 150
in the record, whether or not that ground was relied upon or even considered by the [district] court[.]” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). The majority says nothing about these settled principles of Eleventh Circuit law.
The majority’s silence is all the more remarkable because, just earlier this year, we held that we can take up, consider, and decide a forfeited issue sua sponte to affirm a judgment if there are so-called extraordinary circumstances. See United States v. Campbell, 26 F.4th 660, 873 (11th Cir. 2022) (en banc). Here there is a simple and sufficient ground—amply supported by witness testimony and factual findings—on which to affirm the district court’s judgment. We will be criticized, and rightly so, for selectively applying our precedent—when we approve of the result below, we strain to find a way to affirm, but when the result is not to our liking, we do not consider alternative grounds on which to affirm.
C
“[R]eal issues must be dealt with at retail[.]” Alexander Bickel, The Least Dangerous Branch 139 (Bobbs-Merrill Co. 1962). Although the district court explained that “[t]his case is not about eliminating separate sex bathrooms,” Adams, 318 F. Supp. 3d at 1317, the majority insists on discussing bathrooms at wholesale, while addressing issues not presented by the case. So much for judicial restraint, whose “fundamental principle” is that “[i]f it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” Dobbs v. Jackson Women’s Health Org., 142 S.Ct. 2228, 2311 (2022) (Roberts, C.J., concurring). See Washington
