Anonymous Reactions to Bostock

Right-of-center lawyers send me their to thoughts on Bostock, Blue Monday, and the Conservative Legal Movement

I have written quite a bit about Blue Monday, but haven't yet offered my own analysis of Bostock. Quite deliberately. I need some time to carefully consider and reflect on each aspect of the majority opinion, and the two dissents. In the interim, I'd like to provide a sampling of the emails I've received about the case.

The first email expresses what many rank-and-file conservative lawyers shared with me: a feeling of disappointment and letdown.

I'll be honest, after yesterday I was feeling quite disheartened about the conservative legal movement. I felt like I had been promised so much more (mainly, truly conservative judges) if I gave the GOP my vote year after year. I'm so glad to know I'm not the only one. It's encouraging to know the scholars and professors leading our conservative legal movement still hold to our principles.

The second email worries how Bostock will be used by Chief Justice Kagan in the future to reach progressive results under the false "flag" of textualism:

I find Bostock demoralizing- Gorsuch has just given Kagan carte blanche to rewrite any law she wants and call it textualism. If Gorsuch can do it, then anyone can. If Gorsuch can rewrite Title VII in this way, then we can rewrite anything to say whatever results we want and say it's textualist. Gorsuch just put a textualist gloss on purposivism. If Congress wants to rewrite Title VII, good! That's their job. But Gorsuch just sent us Fed Soc types back dramatically. The law is not a semantic game, but that's what Gorsuch just said it was.

The third e-mail speaks to our current political realities.

Gorsuch's majority opinion was a double kill-shot and will make him the last of the self-described textualists on the Court. In the short term, he disembowled Trump's last shot at re-election, so Justices Ginsburg and perhaps Breyer will be replaced by President Biden. In the long term, two things will happen. First, no GOP White House will ever trust a textualist again. Instead, Republicans will do what Democrats have always done: look for someone who shares their policy preferences. Second, Bostick will convince the rising generation of legal conservatives to largely abandon textualism. Not because textualism led to a liberal outcome, but because Gorsuch did so with reasoning that was embarrassingly thin. In the end it makes textualism seem like the emperor with no clothes. So the rising generation will splinter, some turning to natural rights, some looking to the common good, and some just trying to bring about naked policy preferences. In James Fenimore Cooper's classic novel, the Mohicans were reduced to one lone man because of external pressures: disease and war. Gorsuch will be the last of the Court's textualists. But this extinction is entirely self-inflicted.

I can speculate on one direct consequence of Bostock. Conservative legal groups that appealed to popular audiences will soon have more difficulty raising funds. And in that vacuum other groups will emerge who are not focused on textualism and originalism, but on social conservatism as a direct goal.

Tenure affords me the protections to speak out freely about those outside and inside my own camp. Not everyone has that luxury. Indeed, internecine squabbles are often the most difficult: it is far easier to criticize an opponent than to criticize a friend whom you rely on. But I can assure you that dissent is in the air.

Comments

[bratschewurst]

First, no GOP White House will ever trust a textualist again. Instead, Republicans will do what Democrats have always done: look for someone who shares their policy preferences.

hahahahahahahahahahaha.

[The Grand Moff Tarkin]

Liberals don’t just want to get their wishes enacted into law, they want to make Conservatives feel bad. This is a cruel tyranny. If it goes on long enough and the tyranny reaches deep enough, you will get a reaction. You probably won’t like it. Now that you’ve mowed down the law, you won’t like the wind that blows.

[Sarcastr0]

No doubt some libs are a-holes like that, and some conservatives exist just to own the libs.

But where are you getting your telepathic generalization from, other than your own feelings?

And quit with the tired 'one day we'll do some violence to you if we don't get our way' it's contenteless and tired.

[Brett Bellmore]

Well, from 'liberal' plaintiffs shopping around for wedding photographers, and not settling on one until they find one who'll refuse to do the job. That's how the Elaine case came about.

Or trying to force an order of nuns to provide birth control to their members.

Or going out of their way to shut down comments at The Federalist, instead of just not visiting the site.

[Sarcastr0]

Many Supreme Court cases throughout the cannon were collusive. That's not some sort of new liberal plot.

Also not a liberal plot: lawsuits about civil rights.

Also not a liberal plot: thinks that literally did not happen.

[Krychek_2]

This liberal wants to get his wishes enacted into law, starting with single payer health care. I don't much care about conservatives one way or the other, except to the extent that they're standing in the way of progress.

[loki13]

"In the short term, he disembowled Trump's last shot at re-election"

"and some just trying to bring about naked policy preferences"

HAHAHAHAHAHAHAHA!

Wow. Irony is dead.

Shorter Blackman: Conservatives are all whiny, because a judge actually paid attention to what they believed in jurisprudence, instead of nakedly agitating for Trump's re-election; are now demanding a Council of Guardians.

[Dr. Ed]

“In the short term, he disembowled Trump’s last shot at re-election”

I don't think so. I think it will be more:
"Conservative legal groups that appealed to popular audiences will soon have more difficulty raising funds. And in that vacuum other groups will emerge who are not focused on textualism and originalism, but on social conservatism as a direct goal."

I think that this will be a good thing. I'm not exactly sure of the difference between "origionalism" and "textualism", nor exactly sure how either could have led to the asinine decision, but the left makes no pretense and I don't think we should either.

Fire Truck the RINOs....

[Krychek_2]

The problem for originalists is that the Supreme Court is not in the business of hosting Alice in Wonderland Mad Hatter tea parties. Originalism takes us to results that are absurd, repulsive, and completely divorced from our current values as a society.

And I think once conservatives actually start deciding cases, rather than pissing and moaning about them from the sidelines, and see the real injury that originalism would do to real people, they become cold hard realists and decide not to go there. Plus there are enough of them with enough political smarts to understand that if, i.e., Roe v. Wade were actually to be overturned, suburban women would never vote Republican again.

Here's what I would say to originalists: You are welcome to argue for 18th century values, and the rest of us are free to point and laugh. Bostock produced a good result. Don't worry; be happy.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Interesting, informative:

Bostock produced a good result. Don’t worry; be happy.

Not a correct result, mind you; a good result. Your cover slipped.

[Krychek_2]

Oh, I think it was a correct result. And if the court has discretion as between a result that helps people and a result that hurts people, why shouldn't they choose the former?

There are some cases in which the court has no choice but to issue rulings that are unjust because the law leaves them no choice. This is not one of them. This was a case in which the text really was susceptible to two different meanings, and they chose the one that helped people.

[Aktenberg78]

Why do you assume it's an either/or. It certainly helps sexual deviants and other mentally ill people who want a "right" to work for someone else. It hurts a business owner that wants to decide his own business practices.

[Krychek_2]

I'm still waiting for you to tell me why it's any of an employer's business who his employees boink on their own time.

[Aktenberg78]

Until you are consistent about why it's an employer's business if his employee uses hate speech aka criticizing a non-white on his own time.

[Krychek_2]

Oh, I already answered that back on the other thread. That you didn't like my answer doesn't make me inconsistent. Just in case you missed it, hate speech that gets people fired is typically done in public and sex is typically done in private.

[Aktenberg78]

Okay, so you'd support allowing employers to fire gay employees who hold hands in public?

[Krychek_2]

If they also fire non-gay employees who hold hands in public, sure.

You have this idea that I want special rights for gays. I don't. I want the same standards to apply to everybody all across the board.

A straight couple having sex in the company parking lot would likely get fired, and so would a gay couple, and I'm fine with that. On the other hand, nobody should get fired for what they do at home. I personally watch a lot of movies and read a lot of books since I'm too old and fat to get much action anymore, but that's just as much my business.

In other words, don't treat gay people better, but don't treat them worse.

Now, please explain why you think an employee's sex life, so long as it stays at home, is the employer's business. If I didn't know better I'd be wondering by now if you even have an answer.

[David Nieporent]

Now, please explain why you think an employee’s sex life, so long as it stays at home, is the employer’s business.

Why do you think it's the government's business to tell people who they have to associate with?

[jjrzw72]

As long as the rule is applied, evenhandly, to straight employees, I'm fairly confident that market discipline will solve this one.

[David Nieporent]

What if the hate speech was done in private?

[Krychek_2]

Then chances are good the employer will never find out about it.

[David Nieporent]

And if the employer does?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

And others are still waiting to know why you think it's any of your business what goes on between employer and employee.

[Krychek_2]

Responding to both you and David Nieporent: Because shutting people out of the economy for arbitrary reasons creates problems that spill over into the greater society. And, because depriving people of the ability to fully exercise their talents because of other people's prejudices means that the greater society isn't benefiting from the full use of their talents. The idea that what you do doesn't impact anyone else is simply not true.

Imagine that Alan Turing, the computer genius who helped crack the Nazi code during World War II, which in turn helped the Allies win the war, had been discovered to be gay thirty years earlier than it was, and he had never been permitted to become a computer expert because of other people's prejudices. You really think those private relationships he had with his early employers wouldn't have impacted the rest of the world later on? He's an extreme example, but there are probably millions of lesser examples of the same thing.

On the other side of the ledger, someone who is shut out of the job market because of other people's prejudices is more likely to develop substance abuse issues, turn to crime, or have other psychological issues as a result. Those, too, are going to impact on other people.

[NToJ]

You seem very confident that this is the "right" result. I don't think the theoretical or empirical evidence bears that out.

There is not a lot of evidence that Title VII improves hiring or pay for the protected classes. Relative wage outcomes stalled in the 1990s, there are too many confounding factors to make empirical evidence definitive, and the studies have produced mixed results (some showing improvement, others not). One theoretical problem with Title VII: Since it is harder to prove discrimination in hiring than it is to prove discrimination in pay (since the latter plaintiff will have better information about the employers' discriminatory practice), discriminatory employers may prefer to hire fewer protected class employees than they otherwise would to avoid litigation. (This is why state laws that only provide protected classes on the pay rather than hiring side do show decreased employment for the protected class. They just get hired less.) The additional litigation threat may even cause non-discriminatory employers to employ fewer protected class members. That would leave some protected class employees seeking work wherever they can find it, including employers who are exempt from Title VII (<15 employees). Discriminatory exempt employers would pay these protected class employees less (or not at all), offsetting pay gains that protected class employees get from non-exempt employers.

A more recent example of this is ban the box initiatives, intended to help convicts get jobs. Again, the results are mixed, but there's some evidence (and I've been told it is an emerging consensus but not by people who would know) that ban the box causes employers to hire fewer black/hispanic applicants (presumably because employers began using race as a proxy).

I'm not confident enough to say that antidiscrimination laws are on the whole good or bad for the protected classes. There is a symbolic effect of having the laws that I used to think helped; a society that was willing to write a law that said don't be horrible to gay people, is a society more likely to have people who aren't horrible to gay people. But as the comments (and emails above) bears out, antidiscrimination laws also have a blowback effect. Some people become more hateful towards gays because of antidiscrimination laws. It's hard to measure this effect since we have federal antidiscrimination laws, and there are few instances of repeal of state-level ones, so we don't get the natural experiment to see how public opinion changes when the antidiscrimination law is removed.

It's a mess. On the one hand I'm happy for a legal victory for maligned minorities that deserve to be treated equally. But it isn't obvious to me that gay and transgender people will actually be better off as a result, or that the blowback from this being decided by 9 justices (as opposed to a political consensus) won't have unintended consequences that eventually cause more harm to those groups.

[Krychek_2]

NToJ, I didn't say it was a panacea. Obviously there are multiple issues and no one solution will fix everything. But it will improve the lives of some people, and that's as much as one can hope for.

I personally know a gay man who was raised in poverty but managed to get a scholarship because of a lot of hard work on his part. He was kicked out of the program when it was discovered he was gay. This was in 1982. He's had a series of dead end jobs ever since. If some other gay person somewhere doesn't have to go through what he did, I'll consider it a good result.

[NToJ]

"But it will improve the lives of some people..."

This strikes me as simplistic. If this were about enacting policies that were good for society, the starting place would be whether it results in more improvement than harm. But limit it only to the groups it intends to protect. Even if it increases wages for some in the protected class, if it decreases employment or wages for the others more it's a bad idea, right? And I'm not seeing obvious empirical evidence that this isn't the case.

Re: your friend, this doesn't solve any of his problems. It's 30 years too late to help. Laws that prohibit government discrimination on the basis of sexual orientation (or anything else) don't have the same problems addressed above, since it's just the government limiting itself, not trying to secondarily affect change to private actors. I support antidiscrimination laws for government employers and for institutions that receive government assistance, both because the potential harms are diminished and because it's important for the government to speak affirmatively on this issue (to me, at least). But if a private antidiscrimination law made it harder for your friend to get a job after college in the private sector, are you sure we're helping him?

[Aktenberg78]

Yeah, but where's the line? People claim that any private business that avails itself of public roads or sewage is "receiving government assistance."

[NToJ]

I would not draw the line as broadly as the "People" you reference. To begin the discussion, I'd probably start with direct receipt of federal funds. I'm prepared to discuss moving the line, but that's where I'd begin.

[Krychek_2]

Well, whether a law is good for society depends on whether it does more good than harm, and that's usually a matter a nosecounting. Who is injured by a law that prohibits discrimination based on sexual orientation (or, for that matter, race or religion)? A bunch of social misfits like Aktenberg78 who want to cause economic harm to people they don't like. Who benefits from such a law? People who don't suffer economic harm because of other people's prejudices. How does it decrease employment or wages for anyone else? And even if it did, if a gay man beats out a straight man for a job they were both competing for, presumably it's because he was better qualified for the job or the employer wouldn't have hired him. That's the free market at work.

And you're right, it's too late for my friend. But it's not too late for other gay kids coming up in the world who still periodically encounter discrimination. Not as much as they used to be, but there are still hiring managers out there who share Aktenberg78's social views.

[Aktenberg78]

No, if a gay man beats out a straight man, it's likely because of concerns over EEOC claims, which leads to quotas.

[Krychek_2]

Right, and my Great Aunt Mabel was born on the moon.

[NToJ]

"Who is injured by a law that prohibits discrimination based on sexual orientation (or, for that matter, race or religion)?"

People who believe they should be allowed to discriminate on the basis of sexual orientation, race, or religion lose a liberty interest in choosing who to associate with. I don't put much stock in the feelings of racists, but it's >0. There are also people who wouldn't discriminate but don't want the government to make that decision, so their liberty interests are non-zero as well.

Since the legislature has decided to outsource Title VII enforcement to a large degree to lawyers, the transactions costs associated with its enforcement are lower than zero-sum. The benefit to the plaintiff can be no more than the cost to the defendant. However, the benefits enjoyed by the plaintiffs are offset partially by direct costs to legal counsel. While this is a benefit to legal counsel, that is offset by the attendant transaction costs to the defendant, too. Title VII litigation and settlements cost employers money, that money has to come from somewhere, starting with insurance (more transaction costs), and then just distributing the costs to employees (lower money available for salaries) or customers (increased pricing of goods and services).

[Krychek_2]

Any law will disappoint those who disagree with the law, but I'm not sure that that, standing alone, is the type of harm to be concerned with. Laws against murder cause prospective murderers to lose a liberty interest too, but other values are more important. And I would say that the economic security of minorities is more important than the tender feelings of bigots.

You are right that defending lawsuits is expensive, and employers have no recourse if the lawsuit turns out to be bogus. However, that's true of any type of claim that someone might bring; insurance fraud is a fact of life but nobody seriously argues that we should abolish personal injury law because of it. (Google Scott Strems.) And the EEOC and the various state civil rights agencies offer a relatively low cost investigative process that weeds out a lot of the frivolous claims before they get too far along in the process.

Is it perfect? No. But neither is what happened to my friend.

[NToJ]

It’s less than zero sum even in the non frivolous lawsuits.

[bernard11]

There is not a lot of evidence that Title VII improves hiring or pay for the protected classes.

I would be utterly astonished if anyone could show that Title VII has not improved opportunities for blacks and women.

One theoretical problem with Title VII: Since it is harder to prove discrimination in hiring than it is to prove discrimination in pay (since the latter plaintiff will have better information about the employers’ discriminatory practice), discriminatory employers may prefer to hire fewer protected class employees than they otherwise would to avoid litigation.

So discriminatory employers will hire more class members if there are no anti-discrimination laws? That sounds dubious to me. Why wouldn't they hire fewer?

I suppose the argument is that they can make up for their distaste by paying those employees less, without fear of litigation, but I'd need a lot of evidence to believe that was a significant effect. In any case, it would only happen where there is widespread systemic discrimination in employment, which is not exactly a desirable situation.

[NToJ]

"So discriminatory employers will hire more class members if there are no anti-discrimination laws? That sounds dubious to me. Why wouldn’t they hire fewer?"

Not all employers know they are discriminatory. They may be making subconscious decisions to avoid protected class hires. In a world without antidiscrimination laws, they may hire few. In a world with antidiscrimination laws, their subconscious bias is boosted by a practical justification; protected class employees are riskier than protected class applicants.

On the empirical side, the results are mixed. See Hersch & Shinall (2015) Fifty years later: The legacy of the Civil Rights Act of 1964 in the Journal of Policy Analysis and Management. The evidence showed the most progress for black women, but the results haven't been overwhelming, and confounding factors make it hard to directly show a causal connection. For pay-only negative effects of antidiscrimination laws, see Neumark & Stock (2006) The labor market effects of sex and race discrimination laws in Economic Inquiry.

Re: ban the box, I haven't read any of the studies, but heard about the results from this Freakonomics Podcast. The interviewed economist purportedly found that ban the box laws correlated with a decrease in employment for young black men without college degrees of 5 percent (somewhat offset by gains by older black men, I believe), and 3 percent for young Hispanic men without college degrees.

[David Nieporent]

NToJ: and the evidence for the harms caused by the ADA in the employment context is even more robust.

[jjrzw72]

Real wages stalled out in the '80s. If minority wages continued to rise through the '90s, then I would think Title VII was a surprising success.

[Dr. Ed]

" Plus there are enough of them with enough political smarts to understand that if, i.e., Roe v. Wade were actually to be overturned, suburban women would never vote Republican again."

There are two ways the court could go -- and simply overturning Roe would not affect the suburban women as Roe was a double negative -- states can't prohibit -- and most don't/won't.
Now defining a fetus a "person" under the 14th Amendment, that would get interesting.

But men -- particularly White men -- are the demographic that have decided the last two Presidential races -- why Romney lost and why Trump won. From the Kampus Kangaroo Korts to family law and child support abuses, we are on the cusp of a Men's Rights movement similar to the Feminist movement of the 1970's, and it's now mothers of sons that are the voting block that no one talks about.

And the flip side of abortion is the women who'd like to have had a grandchild but their son's child was aborted. Don't underestimate that....

[NToJ]

"Originalism takes us to results that are absurd, repulsive, and completely divorced from our current values as a society."

This is from the opinion:

"And we would deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations. . . . With this in mind, our task is clear." And then he immediately engaged in a typical original public meaning from 1964 analysis of the terms used in the statute.

Kavanaugh's dissent says original public meaning supports Brown.

I think they're both wrong--Gorsuch about the original intent of the CRA, and Kavanaugh about the original intent of the 14A--but "originalism" guided the opinions of 9 Justices in Bostock. Do you think the result was "absurd, repulsive, and completely divorced from our current values as a society"?

More importantly, your argument isn't against originalism. It's against Constitutionalism.

"Here’s what I would say to originalists: You are welcome to argue for 18th century values, and the rest of us are free to point and laugh."

A person applying the law as written and as intended is not arguing for values at all, besides the value that judges should interpret but not create the law. (That should be uncontroversial.) It is true that someone should speak for the public re: modern values, but it shouldn't be judges. What qualifies them to do so?

[The Grand Moff Tarkin]

There is no law anymore; just power. The Crits are winning. They may be surprised at what happens if there finally is a real class war. The Elites/Crits think they are the proletariat, but in reality, they are the new bourgeoisie. If a revolution comes (and I pray that it does not come), they will find themselves in the same situation that the French Aristocrats found themselves.

[NToJ]

I think conservatives (with whom I disagree politically on a great many things) have been on the right side of judicial theory for my entire life. I think it would be a loss for the country if they abandoned the principle. In a democracy, the best way to distinguish yourself from your political opponent is to not copy your opponent.

[Bob from Ohio]

I imagine you do want conservatives to continue to be principled losers.

[NToJ]

Abandoning principles is a losers' game.

[Krychek_2]

So Bob, are you saying they should be unprincipled winners?

[Bob from Ohio]

Just win baby.

[NToJ]

Krychek_2 if it wasn't apparent already, you should now understand Bob from Ohio's deep hatred for President Obama.

[Krychek_2]

Oh, I get that. What I don't understand is why. Obama's politics weren't even that liberal; I sometimes lurk on blogs run by people who actually are socialists, and they hate Obama even more than Bob does because they see him as having betrayed the left. Unlike the current occupant of the White House, he is a thoroughly decent human being, a family man who loves his wife, and who never had a whiff of personal scandal. And he ran for office because he wanted to help people.

So yes, I get it, the right hates him. I've never heard a satisfactory explanation for why.

[Aktenberg78]

Because he hates whites, and is a lying sociopath.

[LawTalkingGuy]

Well Ark, you would know sociopathy apparently.

[NToJ]

"What I don’t understand is why."

Because he won.

[Bob from Ohio]

What does Obama have to do with what we are talking about?

[NToJ]

Nothing. I apologize for mentioning him in an unrelated discussion, as I know you would never do such a thing.

[Bob from Ohio]

Did I mention Obama here?

I think your meds aren't working.

[NToJ]

Here you did not Bob. That's why I apologized for bringing him up.

[Krychek_2]

He's actually tangentially relevant to this discussion. Bob, you basically admitted that you want conservatives to win at all costs. Including the cost of completely abandoning what semblance of morals and ethics remains in politics (which granted isn't that much). The fact that you hate Obama so much that you are willing to become a bad person just to see him defeated, who does bad things because you care less about your own moral character than you do about him losing, says far more about you than it does about him. So yeah, he's on point to this discussion.

[Jmaie]

"completely divorced from our current values as a society."

How easily "my" values become "our" values...

[Jimmy the Dane]

Or maybe conservatives will realize it doesn't matter what you call power, power is power. Frame it under whatever way you want to legitimize its use, but exercise power. That is all the left does. They jam it into a nice frame called "progressiveness" but all that it is the raw exercise of power.

Time to pull up the bootstraps and get on back in there.

[MDJ23]

Note: Gorsuch is actually occupying a seat that would have belonged to Garland but for the right's power play.

[Krychek_2]

Yeah, and conservatives ended up with the same result they would have gotten from Garland. Sometimes karma really does come back to bite you in the butt.

[Bob from Ohio]

"same result they would have gotten from Garland"

Yes. Conservatives are Charlie Brown and the GOP is Lucy with the football.

[Rev. Arthur L. Kirkland]

Conservatives are more Wile E. Coyote, learning that the expensive Federalist Society box purchased from the Acme catalog did not contain success.

[Rev. Arthur L. Kirkland]

More documentary.

[Mr. Jwpvysig, Jr.]

And Rev weighs in with another bone-headed take.

[Krychek_2]

Bob, in fairness, had Garland been on the court the gerrymandering decision would have gone the other way, which would have been catastrophic for conservatives. With fairly drawn districts, conservatives might never have won another election. So on the case that really mattered, he was there for you.

[Bob from Ohio]

Yawn. Dems gerrymander as much as GOP, see Massachusetts and Maryland for starters.

[Krychek_2]

Dems would win Massachusetts and Maryland even without gerrymandering. Republicans would not win Wisconsin or North Carolina without gerrymandering. While I disapprove of gerrymandering on both sides, that is still a fairly critical difference.

[Aktenberg78]

And Dems wouldn't have won any of them if they hadn't imported tens of millions of third world vermin. What's your point?

[Shadowy Agent]

wow you quickly showed your true colors...

[Krychek_2]

Don't tell me you're surprised?

[jph12]

"Republicans would not win Wisconsin or North Carolina without gerrymandering."

Sure they would. Without gerrymandering, the democratic concentration in cities is really bad for democrats.

Let's not pretend the cases were actually about gerrymandering or no gerrymandering. That's not what they were about. They were about gerrymandering or gerrymandering to achieve proportional representation based on some completely arbitrary standard.

[Brett Bellmore]

As I recall from the Wisconsin gerrymandering litigation, the Democrats actually hired an expert to generate the most favorable possible map without violating equal population or having grossly weird districts, and that map was STILL favorable to Republicans.

Wisconsin Republicans did gerrymander, that was clear. But they gerrymandered to win even more, not to win.

That's why the Democrats have been trying to smuggle in bogus definitions of "gerrymandering", where you have to actually gerrymander in favor of Democrats to avoid being considered guilty of gerrymandering.

[jjrzw72]

Massachusetts isn't gerrymandered, at least not on the congressional level. Although it'd be possible to redraw the Mass congressional map so that there'd be one district where Republicans were slightly favored, it would be contrary to traditional districting principles, and probably violate the Voting Rights Act.

https://projects.fivethirtyeight.com/redistricting-maps/massachusetts/#GOP

[Brett Bellmore]

They absolutely are gerrymandered in Mass, but it's mostly to maximize black representation; The current map is essentially indistinguishable from the "maximize minority-majority districts" map.

[The Grand Moff Tarkin]

The “Conservatives” are actually the new proletariat. I really hope that we don’t have a revolution because it will be very ugly. The elites who dominate our politics, courts, academia, and media will find that they are the aristocrats in an American version of the French Revolution.

[Sarcastr0]

Given conservative policy desires, you may want to look into what the proletariat is.

A revolution to be able to fire gays.
Given the age demographic of conservatives, I doubt your revolution very much.

[Kibitzer]

Conservatives ended up with the same result *in this case* as they would have gotten from Garland.

Will there be no discernable difference over the longer run? That I doubt.

[Dr. Ed]

How WOULD Garland have gone?

I like to remind people that the 2003 Mass Gay Marriage decision that started this whole mess was a 4-3 decision, with the 4 having been appointed by *Republican* Governors and the 3 who dissented being appointed by one Michael Stanley Dukakis, whom the Dems nominated for President back in 1988.

So how would Garland have gone?

[David Nieporent]

I like to remind people that the 2003 Mass Gay Marriage decision that started this whole mess was a 4-3 decision, with the 4 having been appointed by *Republican* Governors and the 3 who dissented being appointed by one Michael Stanley Dukakis, whom the Dems nominated for President back in 1988.

I mean, your track record of never being right continues intact.

The 4 in the majority included Greaney — appointed by Dukakis.

The 3 in the minority included Spina — appointed by Cellucci — Sosman — appointed by Celluci — and Cordy — appointed by Cellucci.

Cellucci is, notably, a different person than Dukakis. Cellucci is, notably, a Republican.

[NToJ]

Notice that Dr. Ed wasn’t just asserting a wrong fact. He was pretending to reminisce about how he had confidently told other people about something that isn’t true. (“I like to remind people...”) I think it’s a classic case of what you’ve pointed out re: Frankfurt’s On Bullshit. This man has no relationship with the truth, not even enough to know or care how to lie.

[David Nieporent]

Well, technically, it might be true that he likes to remind people of that…

[NToJ]

It might be but that would require you to treat his claim about reminding people as more reliable than every other claim he makes. Since we know he spouts bullshit, his claim that he spouts bullshit seems reliable. But when a habitual liar tells you he’s lying... we are entering paradox territory.

[TheAmazingEmu]

I'm skeptical that Garland ever would have commanded a majority vote in the Senate. I think a lot of Senators would have had an awkward vote and this might have hurt their election chances (not guaranteed), but I don't see why Republicans would have voted for Garland.

[NToJ]

Republicans have voted for Kagan and Sotomayor. Garland had Republican support. Hatch liked him too. I think he would have gotten enough votes.

[TheAmazingEmu]

Neither Kagan nor Sotomayor replaced a conservative Justice so the scale was smaller. Kavanaugh with Kennedy is a more comparable example. Other examples would be the nominations of Bork (where Kennedy was ultimately the compromise candidate) and Thomas (replacing Marshall). Alito might be another comparison because of the replacement of O'Connor, but Kennedy was still on the bench so the stakes were lower.

[NToJ]

The reason there wasn’t a vote is because Hatch was already on record approving Garland, and at least two Republicans had come out saying they’d vote for him.

[Dr. Ed]

I think what this has done is force Trump to name Amy Coney Barrett as his next nominee, and the firefight on that will be nasty.

[Jimmy the Dane]

The court is just another policy making organ of the federal government. Any grand ideas of separation of powers are gone. We live in the last days of the Republic. It is now all simply about power. Soon the facades will be gone, but until then the right really really needs to just start exercising raw power.

The counter protesters are quickly figuring that out. It is funny watching a BLM protester complain to the police they would like to defund that a big bad counter protester just assaulted them. Oh well....

[Krychek_2]

Do you seriously think the right hasn't been exercising power? What do you call Mitch McConnell refusing to allow all those Obama judicial nominees (including Garland) up for a vote? Or refusing to take up any legislation Obama sent in his last two years in office? Or gerrymandering in North Carolina and Michigan, after first stripping the Democratic governors of those states of most of their power? You don't call that raw exercise of power?

[Dr. Ed]

What do you call "Borking"?

Or Alcee Hastings, the Congressman who was Impeached & Convicted from the Federal Bench for bribery if I remember correctly.

[santamonica811]

Shorter Dr Ed,
"Yes, you are correct about McConnell abusing his power. And this repulsive gerrymandering, and the active work of Republicans to suppress lawful citizens from voting. But I don't have the integrity to actually admit this, about things that are happening right now; so I'll try and deflect by talking about bad things that I think the other side has done in the past, decades ago."

[Aktenberg78]

What about the legalized cheating aka "vote harvesting" leftists did in California? It's not decades ago. You people haven't played by the rules ever. We are allowed to call you out.

[Sarcastr0]

Legalized cheating is by definition playing by the rules.

[Aktenberg78]

LOL. You really are a joke.

[Sarcastr0]

Legalized cheating is itself an oxymoron.

You are fundamentally unserious, and burning up with hate. At least I'm funny.

[Dr. Ed]

Above and beyond that, how about the California counties where more than 100% of the eligible voters actually voted.

Yes, you can have 103% of those eligible to vote actually voting without any fraud. Right...

[Sarcastr0]

Ed, you are posting long-debunked nonsense once again.

Judicial Watch claimed this was the case, but it turns out it was double-counting inactive voters.

https://www.sandiegouniontribune.com/opinion/the-conversation/sd-california-more-voters-than-eligible-adults-claim-20170809-htmlstory.html

[Noscitur a sociis]

I think everyone else understands that any time Dr. Ed gives us an implausible anecdote that happens to support his priors, it's safe to assume that he's lying. But thanks for taking he time to debunk him here.

[bernard11]

Or even a plausible one.

[Noscitur a sociis]

Or even a plausible one.

I'll get back to you if that ever happens.

[NToJ]

"What do you call “Borking”?"

I call it putting a nominee up for a vote, and having him voted down on bipartisan grounds. I think Bork should have been put on the Court, but you can't even compare what happened to Bork to what happened to Garland.

[Jonny Scrum-half]

What do you define as "Borking"? I recall that the Senate voted in a bipartisan manner to reject Judge Bork, just the way the Constitution provides. Why do you have a problem with what was done to him?

[bernard11]

"Borking" is describing the nominee's stated, published, views on a variety of relevant matters.

Bork was an opponent of the First Amendment, among other things. His writings subsequent to his failed nomination prove that the Senate was wise to reject him.

I know the reality has lost all meaning, and conservatives just like to yell, "Borking," but that doesn't change the facts.

[Brett Bellmore]

Yeah, Bork should have gone down in flaming ruins, and did in a bipartisan fashion.

[grb]

Jimmy the Dane : "Frame it under whatever way you want to legitimize its use, but exercise power. That is all the left does"

Here's one thing that never fails to amuse : Go on a Left-leaning website, then visit its counterpart on the Right. Know what you'll always find in common? People saying their side would be SO much more effective if only they were ruthless like their opponents - if only they didn't so many darn scruples and principles.

Really. You could cut&paste this tired shtick from far-Right to far-Left (or vice versa) and it would drop seamlessly into place. Apparently it's the kind of nonsense people just enjoy spouting. Who knows? Maybe they're even unaware the other side is saying the exact same thing.

[Brett Bellmore]

But if you look at, for instance, the controversy over censorship by social media platforms, the contrast becomes sharp: The right complains of censorship, the left complains that there isn't enough of it.

It's quite possible for two groups to both want their leaders to be more ruthless, but to have that "more" be from radically different starting points.

[Sarcastr0]

Unless you think the government mandating twitter post what you want it to post is censorship.

There are plenty of partisan asymmetries. But this is just you begging the question. Again.

[NToJ]

"...censorship by [private] social media platforms..."

Which is not really censorship at all. You seem to think this exposes some leftist double-standard, but the authoritarian conservative position is consistent. They want the government to tell private people what they can't say. And they want the government to tell private people what they must say.

[David Nieporent]

But if you look at, for instance, the controversy over censorship by social media platforms, the contrast becomes sharp: The right complains of censorship, the left complains that there isn’t enough of it.

The right complains of censorship… until people say things they don't like, and then the right complains that there isn't enough of it.

Hint: it wasn't the left trying to get Kaepernick fired.

[Aktenberg78]

Yes. Conservatives should have stopped pretending liberals were allies 30 years ago and went on a naked power grab.

[Sarcastr0]

You're a pro Pinochet guy, IIRC.

You suck.

And don't speak for hardly any conservatives.

[Aktenberg78]

Pinochet was a patriot that made Chile one of the richest countries in South America after ridding Chile of the communists and their families.

[LawTalkingGuy]

And how did he and his regime “get rid” of them? I mean how many people would you be willing to rape in order to rid a country of “communists?”

[Aktenberg78]

Sometimes the ends justify the means.

[LawTalkingGuy]

So you’re admitting that you’re willing to rape people to get what you want? How many? Is there an age cutoff? Would you be willing to rape a prominent liberal politician’s children in order for them to resign?

[Aktenberg78]

I'm not willing to rape anyone. But am I willing to support the actions of paramilitaries who may do so? Sure.

[LawTalkingGuy]

Would you encourage them to?

[Aktenberg78]

No, and most other leaders haven't either. It's usually rogue foot soldiers that are tolerated to achieve the larger goal.

[LawTalkingGuy]

Okay. So you’d tolerate it? How much?

[Aktenberg78]

As much as needed to defeat the enemy.

[Bob from Ohio]

"And how did he and his regime “get rid” of them?"

Killed some, exiled some. The usual way most of the rest of the world gets rid of opponents.

[LawTalkingGuy]

Also torture and rape. Don’t forget about that. Curious. What’s your number of acceptable rapes for a communist free society?

[Aktenberg78]

As many as it takes.

[LawTalkingGuy]

And how many are you willing to do?

[Bob from Ohio]

He's trolling you.

[LawTalkingGuy]

Perhaps. But I think he’s actually just a genuinely bad person who would be completely willing to use torture and rape to achieve his ends if given the chance and we as humans should sincerely hope that he remains an anonymous internet commenter and stays extremely far from political power.

[Bob from Ohio]

"Also torture and rape."

Yeah, also SOP in most of the world.

Read about the Left in the Spanish Civil War, especially with nuns. [Or Soviet soldiers in Germany. Not domestic opponents to be sure but rape as officially encourged torture/revenge.] Its certainly not unique to Pinochet.

[LawTalkingGuy]

Right. But I don’t support them either, and have never voiced my support for them. If you’re going to enthusiastically support a specific dictator then you need to own up to what you’re actually supporting.

[Rev. Arthur L. Kirkland]

Quit whining, clingers.

The 'change is afoot' comment is interesting. How do conservatives propose to become more effective at preserving gay-bashing in modern America?

[Dr. Ed]

There'll be plenty of that in the coming fight between the Ls and the Ts.

[Sarcastr0]

Has one of your predictions _ever_ come true?

[Alpheus W Drinkwater]

No, but at the rate he comments, he's bound to find an acorn eventually.

[Mr. Jwpvysig, Jr.]

I have read many enlightening comments from readers here over the last few years, but you and sarcastro haven't authored any of them

[Sarcastr0]

I mean, same to you? I don't keep my ego in enlightening the VC comentariat.

I've found this blog is an entertaining way for me to elucidate my thinking on political issues by debating with people both smart and dumb who disagree with me.

[Sebastian Cremmington]

Gorsuch owes everything to Scalia’s Heller opinion which laid the foundation for liberal textiles. Hey, if we just say “state” means country and “militia” means everyone then we can develop the RBKA without using the right to privacy or liberty interests analysis.

[loki13]

By the way, let me explain exactly why and how this argument is stupid.

First, the result isn't surprising in terms of Title VII. The issue of "sex" and conforming to a gender identity has been the law of the land since that liberal Rehnquist court opinion of Price Waterhouse v. Hopkins (1989).

Since that time, there has been a long split between various circuits as to the distinctions between "gay," "transgender," and "sexual sterotyping" when it came to federal lawsuits, which meant that the success or failure of a Title VII suit "because of sex" often was solely determined due to artful pleading and where you brought the action. "It's not because I'm gay, it's because I didn't conform to traditional male stereotypes, such as liking women." Instead of creating new rights, this was simpy ratifying what had been a majority rule (or, at worst, something that had to be pled around).

Second, this is not only an unexceptional textual result, this is a conservative textual result. The first time I remember hearing this precise type of argument was on this blog, from Prof. Somin (although I believe he did not originate it); this was a common conservative argument regarding this. Moreover, this type of textualism without resort to intent or history is the very argument that Scalia championed; it is is difficult to reconcile this level of SHOCK that judges just aren't just using their judgment as to what Congress probably, maybe, intended to overide the text of the statute given this dominant strain within conservative textualism.

Third, and finally, this is a statutory decision. If you don't like it, just have Congress change it. Yes, I know, if you think it is wrong, it's the equivalent of having Congress write, NO TO DE GEYZ AND WE REALLY MEAN IT THIS TIME!" And they won't. Everyone - from the majority of the GOP to Trump, is relieved by this decision, since it absolves them from having to do anything, while still allowing them to say, "Vote for us and you derpers can get the JUDGES YOU DESERVE!"

Whatever. Please post more salty emails. They are like manna from heaven.

[Sebastian Cremmington]

Exactly, Republicans still make a huge deal over NFIB and the Obamacare individual mandate even though Republicans in Congress repealed it several years ago...and then Republicans’ lives didn’t get any better and they found someone and something else to hate.

[Bob from Ohio]

"Everyone – from the majority of the GOP to Trump, is relieved by this decision, since it absolves them from having to do anything, while still allowing them to say, “Vote for us and you derpers can get the JUDGES YOU DESERVE!”"

This is 100% accurate.

[Aktenberg78]

Except that how does a decision written by one of the supposedly conservatives judges we "deserve" provide an argument to vote for them again and get the same result?

[Bob from Ohio]

Conservatives are Charlie Brown and the GOP is Lucy with the football.

[loki13]

"Conservatives are Charlie Brown and the GOP is Lucy with the football."

Sure, but with everything?

Put another way, you are the marks, and the GOP elites are the con artists. They expect you to fall in line and vote for them and believe their lies, and watch their propaganda. They want you to rail against the swamp while they profit from it. They want you to mock the Ivy League while they send their kids there. They want you to vote for judges that will restrict abortion, while they bring in judges that will protect their pecuniary interests.

And yes, you will line up to kick the football again. But, in this case, it is well-known that most of the conservative elite isn't against the gays, or even transgendered individuals really, but they need to keep the base riled up. Something something bathroom something something send another $100 and vote for Trump!

[Aktenberg78]

The GOP elites are con artists, just like the Dem elites. Do you think Pelosi or Schumer wants to live in a housing complex with blacks and Hispanics?

[Krychek_2]

I don't want to live in a housing complex with anyone, including whites, because housing complexes are generally unpleasant places to live. I used to do poverty law in Boston where the housing complexes were mostly Irish and they were no picnic either.

[Bob from Ohio]

"you are the marks, and the GOP elites are the con artists"

Correct. Do you think I disagree?

[Aktenberg78]

Yeah, well, I'll be voting for Biden (and telling all of my conservative fed up friends here to do so too) and sending a picture of the ballot to McConnell, letting him know exactly why.

[Bob from Ohio]

No single vote matters.

[Aktenberg78]

Sure, but there are a lot of people who are feeling like me. We need to burn it all down to repair it.

[Rev. Arthur L. Kirkland]

As a former appointed and elected official of the Democratic Party, I hope you do not vote for Joe Biden.

First, no decent person would want your vote -- the conservatives can have it. You are a good fit with the Republican Party.

Second, we won't need your vote.

[Aktenberg78]

Of course you don't need it, you imported tens of millions of mestizos, Africans, Arabs, Bangladeshis, and other third worlders to do your dirty work for you.

[Dr. Ed]

Why couldn't "sex" be further expanded to protect those who are fired for statements about homosexuality?

[Allutz]

I don't think this is correct. Gorsuch failed to really grapple with the real argument about what the phrase meant when the law was passed. Alito's dissent in section II(A) stands unrebutted.

[loki13]

It's easy to write a dissent; depending on Alito (!?!) for your textual analysis is the surest road to stupidity.

[David Nieporent]

II(A) of the dissent is making an original expected application argument in the guise of a textual argument. As Loki said, if the phrase "because of sex" doesn't mean this, then Price Waterhouse was also wrong.

[Noscitur a sociis]

Since that time, there has been a long split between various circuits as to the distinctions between “gay,” “transgender,” and “sexual sterotyping” when it came to federal lawsuits, which meant that the success or failure of a Title VII suit “because of sex” often was solely determined due to artful pleading and where you brought the action.

Can you elaborate on that? According to Kavanaugh, every court of appeals that considered these arguments rejected them until 2017. Are there additional examples you think he overlooked?

[loki13]

Kavanaugh is applying a LOT of sleight of hand, here.

The history of various attempts to pass ENDA (Employment Non-Discrmination Act) in the 90s, one of which failed by a single vote, and the reaction of courts to the genderstereotyping claims after Price Waterhouse, was fairly well-known.

By the 2000s, the general rule of thumb was that while you could not plead a discrimination case as being "but for" sexual orientation in terms of Title VII, you could plead it in terms of gender stereotyping; in other words, if a man was discriminated against because he wasn't a stereotypical man. (AKA, gay).

Different circuits had different levels of tolerance with regard to this; IIRC (and I haven't looked at it since, oh, 2013?) the 11th Cir. was one of the "worst", and 9th one of the "best." All of this would occasionally result in some truly bizarre motion practice in federal court, wherein if you were in a "bad circuit" you would see employers say, "No, we didn't fire him because he wasn't manly, or because he dated men, but because he was gay."

This became more of an issue when the Obama-era EEOC became more aggressive about pursuing cases that were about gay/tg status. Many of which never reached court.

What Kavanaugh is referring to is the later practice of (some) courts applying a different standard and removing the fig leaf entirely and simply stating that gay/tg is a protected class; roughly what ENDA in the 90s and other legislation attempted to do.

Notably, this is not what Gorsuch is doing. In effect, Gorsuch is ratifying the PW/Hopkins line of decisions, but saying that they didn't go far enough.

I'm not sure that this is the best forum for a full explanation, given the lack of intelligent comment that we have no, but you get the gist.

[Sarcastr0]

I appreciate this.

[Josh R]

Moreover, this type of textualism without resort to intent or history is the very argument that Scalia championed

According to Scalia's coauthor Bryan Garner (The Interpretation of Legal Texts), Scalia would take into account that no one in 1964 thought Title VII applied to sexual orientation. However, Garner agrees with Gorsuch.

[Josh R]

this is a conservative textual result. The first time I remember hearing this precise type of argument was on this blog, from Prof. Somin.

I first heard it from Koppleman regarding DOMAs. I was not persuaded then, and I am not persuaded now. As Gorsuch said in this very opinion (my emphasis):

[the] but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.

Gorsuch changed two things: sex and sexual orientation (a gay man became a straight woman). Had he only changed sex, the employee (now a lesbian) would still have been fired.

That being said, I am persuaded the result is correct based on sex stereotyping per Price Waterhouse

[David Nieporent]

Gorsuch changed two things: sex and sexual orientation (a gay man became a straight woman).

No, he changed one thing: sex. A man who dates men vs. a woman who dates men.

[Josh R]

Because gay women generally don't date men, he changed sexual orientation as well.

[David Nieporent]

What they actually generally do doesn't change what the employer actually did. Unless the claim is that the employer actually would have also fired a lesbian who dated men. If the employer could show that, then the employer should prevail under the Gorsuch interpretation, because then the employer actually would be discriminating on the basis of sexual orientation rather than sex.

[bernard11]

Republicans will do what Democrats have always done: look for someone who shares their policy preferences.

Wow. This is beyond stupid. Does whoever wrote this think Republicans don't look for judges who share their policy preferences?

[Nick Gillespie's Jacket]

I’ve seen multiple comments here and elsewhere say that Gorsuch stayed true to textualism, and conservatives are just complaining about the result and not the process. And maybe there’s some truth to that. But I also read in an article this quote from a Gorsuch opinion all of 2 years ago, and I’ve seen other comments that the below quote is consistent with a book that Gorsuch wrote. Am I missing something (I haven’t read the opinion, but have no reason to doubt that the below quote is from it), or can we at least all agree that the Gorsuch quote below from 2018 lines up with the Kavanaugh dissent in Bostick, and that Gorsuch was not true to his 2018 description of statutory construction? Thanks.

A quote I saw in a reaction essay from a Gorsuch opinion in the 2018 case called Wisconsin Central Ltd. v. United States:

Written laws are meant to be understood and lived by. If a fog of uncertainty surrounded them, if their meaning could shift with the latest judicial whim, the point of reducing them to writing would be lost. That is why it’s a “fundamental canon of statutory construction” that words generally should be “interpreted as taking their ordinary, contemporary, common meaning . . . at the time Congress enacted the statute.” Congress alone has the institutional competence, democratic legitimacy, and (most importantly) constitutional authority to revise statutes in light of new social problems and preferences. Until it exercises that power, the people may rely on the original meaning of the written law. [citation omitted]

[loki13]

Do you understand what Gorsuch did in his opinion?

Now, how does that, in any way, contradict what he wrote that you just quoted?

[Brett Bellmore]

Sure, we understand what he did in his opinion. The technical term for it is "sophistry".

[loki13]

Since I am dealing with a congenital liar who is 9 yards short of a first down, I will type this slowly.

The question asked was how Gorsuch's opinion conformed with his earlier 2018 opinion. Any person who read the opinion knows it is in complete conformity, given that Gorsuch's legal analysis STARTS with an analysis of what the terms in question meant at the time of passage. Op. at 4-9.

So no, it's not "sophistry," it's entirely unsurprising if you knew anything about either Gorsuch, Title VII, or the law.

So, given your bona fides Brett, it's TOTALLY DERP SHOCKING!!111~!!!11

[Noscitur a sociis]

I would say that quote lines up with all three opinions in Bostick: Gorsuch, Kavanaugh, and Alito all accept that the dispositive question is the meaning of the text when Congress enacted it. (Incidentally, this agreement alone is an incredible victory for the conservative legal movement—you would not have read it in an opinion by Justice Kennedy.) The disagreement, rather, is about what that original meaning actually was. I think Gorsuch was wrong here, for what it's worth, but I don't see any reason to doubt that his conclusion was the product a good faith effort to apply precisely the principle he's talking about in that quote.

[Bob from Ohio]

A few people warned about Gorsuch at the time but we were laughing about Garland.

His support from libertarians should have been a tip off.

[LawTalkingGuy]

This isn’t a libertarian result though, because it’s expanding the scope of a federal civil rights statute.

[UVaGrad]

I'm not so sure. The most libertarian result would be having no federal civil rights statute. But I'm not sure it follows that in the world where such a statute exists, the most libertarian reading of the statute is the one with the narrowest scope, since that could be construed as rent-seeking by the groups protected under the narrow reading.

[LawTalkingGuy]

That’s true. But the narrowest scope presumably narrows the government’s ability to interfere in private business decisions, so widening the opportunity for interference it isn’t exactly libertarian, at least to me.

[Bob from Ohio]

"This isn’t a libertarian result though"

They mostly seem to be applauding it though. Amash for instance.

The libertine part of their ideology is stronger than the small government side.

[Dr. Ed]

Yes Bob, I remember that. And it might have been a Pyrrhic victory.

But it is Bush '43 who is responsible for Roberts -- assuming he isn't being extorted. Or even if he is.

[santamonica811]

Extorted?!? (Someone probably has a videotape of his involvement with that whole child-sex pizza restaurant thing . . . man, the Clintons' roots run deep. I KNEW that, somehow, it was all Hillary's fault.)

[Dr. Ed]

Not that you'd be confused with the facts, but the allegation involves the two Irish-looking children that he reportedly adopted from Latin America actually were born in Ireland whose laws prohibit adoption by non-Irish parents.

See, in general: https://www.theblaze.com/contributions/was-supreme-court-justice-john-roberts-blackmailed

[NToJ]

The linked article provides no evidence of the conspiracy theory you're carelessly flouting. The 1991 Irish law you're referencing does not prohibit adoption by "non-Irish parents". It prohibits adoption by non-residents.

[santamonica811]

Ed,
Thank you. I appreciate your observation that I would not be confused were I to be presented with facts. You are rarely so restrained, let alone complimentary. Your kind words did not go unnoticed.

(It's also possible that you meant to say something rather opposite than what you actually typed.)

[LawTalkingGuy]

Yeah. The fever swamps of the right assume he is being extorted because he’s behaving exactly like you’d expect someone with lifetime tenure and the title Chief Justice to behave: independently of how the people who put him into power think he should be behaving.

[Bob from Ohio]

Yeah, W batted .500 just like his dad.

Roberts is not quite as bad as Souter but not good either.

[Aktenberg78]

I warned about Roberts back in 2004 or 2005, whenever it was, and I was ignored.

[The Grand Moff Tarkin]

Damned shame you were ignored. I think we should refuse to allow any more justices from Ivy League schools. It takes a lot of brilliance to explain why white is black and while 2 + 2 does not equal 4. We need a little less brilliance and a little more humility.
The court is squandering its credibility. There was a time when the court was seen as a lagging indicator of the law. In this, it based its rulings on what the people were doing, not on what our elites wanted to people to be doing. Legislation tends to be aspirational, but too much aspirational law becomes noise. The law is supposed to be the rules that society lives by. If the law becomes a series of rules imposed from above...rules that do not reflect the rules that we actually live by, then the law will be ignored.

[Bob from Ohio]

Thomas and Alioto are Ivy too.

Its not just the Ivy connection, its the rest of the narrow criteria in addition to it. NYC or DC suburbs, elite private college, Ivy law, fed court clerk, Big Law in NYC or DC, Circuit judge. Its a stale template, from both parties.

Lets start with Amy Barrett who at least deviates a little.

Maybe a politician after that, maybe Ted Cruz though he largely fits the existing template. Or a state court judge from a conservative state

[LawTalkingGuy]

Someone with much more criminal defense experience. Someone with much more trial court experience.

[Noscitur a sociis]

The only justice with any meaningful experience in those areas is Sotomayor.

I suspect that may not be the mold that Bob from Ohio and Grand Moff Tarkington are looking for.

[LawTalkingGuy]

I suspect you’re right. But I think even a conservative criminal defense attorney (and they definitely exist) would be a huge improvement. A patent attorney or someone from the Federal Circuit would also be great. It’s always a big part of the Court’s docket and has huge implications but I don’t think any of the justices have any experience with this, and they never have. Hell, do any of the justices ever get their clerks from the Federal Circuit or ones who became patent lawyers?

[LawTalkingGuy]

Bob already laughed at the notion that we should have someone with criminal defense experience on the bench.

[Bob from Ohio]

"criminal defense experience"

LOL

No.

[LawTalkingGuy]

Yeah. It’s just hilarious that we have judges making decisions about the rights of criminal defendants without ever having actually represented a criminal defendant.

[Bob from Ohio]

What in my comment history leads you to think I would support a criminal defense lawyer on the Supreme Court?

[LawTalkingGuy]

Unfortunately nothing. But I thought as a lawyer you would understand the importance of having someone with that kind of experience on the bench. But I guess you’re a clown like Josh Hammer who thinks defense attorneys are dumb and bad because criminals are dumb and bad. Which is not only t a gross view, but also one that is at odds with the Constitution and the best traditions of the profession. You’re doing a great disservice to both with this view.

[Aktenberg78]

Yep. The fact that he only had a year or two on the D.C. Circuit, was an Irish Catholic from New York, and had no real conservative opinions on any politicized issue, was enough reason for me to oppose him.

[David Nieporent]

I was ignored

Lunatics often are. (Not often enough.)

[UVaGrad]

Chief Justice Kagan

Is this a prediction that Kagan will be named Chief Justice when Roberts retires, or is this some dumbass LOL ROBERTS IS A CUCK thing?

[LawTalkingGuy]

No clue. She’s only five years younger than him so I don’t think a democratic president will elevate her when he retires because she likely won’t be far behind.

[Sidney r finkel]

I always thought that Textualism was a conservative doctrine and was espoused by people like the late Justice Scalia.

But now I know that Textualism is only a conservative doctrine when it results in decisions that a consistent with some conservative thinking. When it results in decisions that are not supported by conservatives then it is not conservative.

This is, of course, exactly like Originalism. When an original interpretation of the Constitution results in a decision favored by so-called conservatives, originalism is praised and supported. When it would result in a decision whose policy implications are not those supported by the so-called conservatives, it is quickly discarded and not to be mentioned.

Think how much better conservatism would be tolerated if it were principled and consistent.

[loki13]

So, the issue I think that most people do not understand is that Gorsuch is not ruling in favor of expanding Title VII's protected classes to homosexuals and transgendered individuals, per se.

Let me use a quick analogy. When this was passed, Congress probably assumed that a lot of what we consider unacceptable discrimination based on sex was just a-ok! You know, like rules regarding "professional attire" for women, or hair and makeup rules, or rules regarding weight for women, or differential rules for ear piercings.

The definition of "sex" or "discrimination" didn't change. Instead, we just began to enforce the law ... well, better? We enforced the text of the law instead of outdated societal norms.

Here, the question becomes- are you treating homosexual and transgender people differently because of their sex (not their identity); I think the persuasive case is made that, in fact this is the case. Moreover, this has been a cause of action for many people since 1989 (pleading gender stereotyping; this just formalizes it).

That's not to say that I don't understand the counterargument; that homosexuality was a "known class" at the time of passage, and by failing to include it in an enumerated list, it is excluded. But that argument actually requires a lot more work (IMO) from a textualist standpoint than does Gorsuch's clear opinion.

And I will reiterate anyone feeling outraged; all that needs to be done is to change the text of the law.

[Dr. Ed]

CAN the text of the law be changed, or would that be thrown out by SCOTUS?

[loki13]

Yes. Of course the statutory text can be changed or amended.

But it won't.

[The Grand Moff Tarkin]

Imagine a dynamic interpretation of ERISA. It makes my brain hurt. Complicated laws become so much word salad. We might as well just enact the next 1,000 words out of Joe Biden’s mouth as codified law.

[Noscitur a sociis]

Were Congress to amend the statute (it won't), how would you defend it from a challenge under Romer?

[loki13]

? Easily?

I'm more curious to see what happens with the first RFRA challenge.

[Noscitur a sociis]

Really? What would you point to as a non-animus rational basis for the exclusion?

[NToJ]

The easier answer is that Romer was a 14A case and that the 14A does not apply to acts of Congress. Moreno-like reverse incorporation would never survive this court. SCOTUS is more reluctant to accuse a coordinate branch of improper animus than a subordinate state government. (I’m not even sure animus has 5 votes anymore on state law issues.)

More importantly the rational basis in a private anti discrimination law case is a lower hurdle than state discrimination (like Romer). A law that merely excludes a class from discrimination by others serves the rational basis of prohibiting the non-excluded discrimination. The inquiry can then end. The government’s decision to discriminate directly is always harder to defend.

[Josh R]

What exclusion?

[LawTalkingGuy]

One difference is that Amendment 2 singled out homosexuals as a group and denied them the ability to obtain protected status at any level of government in the state. If Congress amends Title VII to exclude sexual orientation, they obviously won’t be sweeping that far. They would be clarifying that sex doesn’t mean sexual orientation, which doesn’t prevent sexual orientation from becoming protected in some other way by future statute, by the states, as a matter of executive policy, etc. Is that enough to overcome an animus charge? I’m not sure. I’d have to think on that more.

[Aktenberg78]

Purely depends on what the judges are feeling. They can easily argue it was "animus."

[Sarcastr0]

This is extremely damming of the conservative legal academia. I knew it was bad...but this is pretty nakedly unprincipled.
Nothing but outcome-oriented anger.

The rationalizations manage to be both weak and radical.
One wonders what Gorsuch has done for the GOP lately.
The second declared Gorsuch's textualism now renders language meaningless clay to be shaped by Kagan.
The third is just done with textualism now.

Makes one ever more cynical about the doctrinal principals of conservative law profs, that they are so willing to discard what they recently advocated for when an outcome is nice to gays.

[Jeff Walden]

I think you're overreading just how widely and massively the upset here extends. Right now, the people who are upset are going to be the loudest about it. And you're mostly only going to be hearing them. Don't mistake loudness for unanimity, or even widespread agreement on the matter.

[Jeff Walden]

(Not to mention, of course, that this post contains all of exactly three anonymous opinions on the matter. Hardly a sound basis for immediate generalization!)

[Bob from Ohio]

None from the "conservative legal academia" either, just lawyers.

[Sarcastr0]

Yeah, Jeff, I that's true.

And on twitter quite a few of the righties I follow say this is legit even if they don't like the outcome, and have retweeted others.

So really, just a bad show from these anonymous people. And maybe they'll come to their senses in a bit.

[Aktenberg78]

I'm not that upset about this decision, on its own. I oppose Title VII in its entirety, not just the sophistry to extend "sex" into "sexual orientation."

I'm more upset with this decision IN CONJUNCTION with the REFUSAL to hear ANY 2nd Amendment cases, all while the lower courts and liberal governments thumb their noses at it.

These people are more concerned with protecting the "right" of a gay man to let his pocket rocket explode in another man's backside than protecting enumerated, fundamental rights.

[NToJ]

It's just a few people.

[Sarcastr0]

Sure, but it's 100% tools.

Blackman's sampling is quite a thing.

[loki13]

"Sure, but it’s 100% tools.

Blackman’s sampling is quite a thing."

As a sample of conservative attorneys, not illuminating.

As a sample of people that Blackman knows? Very illuminating.

[Noscitur a sociis]

This is extremely damming of the conservative legal academia. I knew it was bad…but this is pretty nakedly unprincipled.
Nothing but outcome-oriented anger.

Assuming that these responses are representative of "conservative legal academia" (indeed, assuming that they are not simply fabricated by Prof. Blackman, which I'm not at all certain of), I don't think I follow this criticism. They are angry at the outcome because they think the outcome is obviously incorrect. I think the sturm und drang is overwrought, but I am having trouble seeing how it's unprincipled.

[Sarcastr0]

I'm coming around to the overwrought bit.

But as to the outcome-oriented, the rest of my comment gets at that.
The first yearns for 'truly conservative judges' which seems to have a pretty outcome-oriented sense of what a conservative judge is.

The second comes the closest to the 'I'm angry because it's so wrong' model, but it does so by completely failing to engage with the opinion. 'Gorsuch just put a textualist gloss on purposivism' is a nearly willfully blind misreading.

The third is willing to jettison textualism, because it got the 'wrong' result.

[Noscitur a sociis]

I think you're engaging in a remarkably uncharitable reading (although one that's perhaps justified by the melodrama of the comments themselves).

I don't think there's any basis to conclude that any of the correspondents are upset because they really wanted to make sure that gay people aren't protected from employment discrimination. Rather, my impression is that they feel very strongly that a proper application of textualist methodology would cannot lead to the conclusion Gorsuch reached—and that they're unhappy that there aren't five justices who are willing to apply that methodology.

Now, I think they're wrong: anyone who says that this is an easy question with an obvious answer doesn't know what they're talking about. (This includes me when I said that the other day.) There are formidable textualist arguments on both sides, and I think people of good faith can honestly reach different conclusions, and the people (on either side) who are accusing Gorsuch, or Alito, or Kavanaugh, of being disingenuous instead of simply being wrong are out of line. And of course, a single bad decision (particularly on an issue like this) isn't going to bring the republic crashing down.

[Sarcastr0]

Maybe you're right - melodrama can sour me on an argument.

But I just don't track anyone speaking about why or how Gorsuch's methodology was wrong, just calling it names at best or declaring it no longer a principle conservatives should adhere to at worst.

They all concentrated on the outcome, not the methodology, albeit generally second order effects (super-Kagan, conservatives abandoning textualism).

I think Gorsuch's textualism seems myopic and silly, but I was never a four-corners textualist to begin with. It does seem that there are two schools competing for the title of One True Textualism - Gorsuch looking at the trees and other people looking at the forest. And both seem to have adherants.

Alito may be in good faith, but he did put in a bit too much drama as well, IMO.

As for only one decision, absolutely. Though pretty interesting from a jurisprudential PoV, this ain't even Obergefell. It's going to fade. Conservative skepticism of Gorsuch will also fade the moment he writes a 5-4 they like.

The main long-term political outcome I see is how the Federalist Society will take this...this is what they wanted, right? It'll be an interesting test of their self-image.

[James Pollock]

You will also see a great tree of complaints about liberals who rewrite law from the bench, and here you are seeing complaints that the conservatives chose not the rewrite the law from the bench. About as principled a stand as I tend to expect. "Do whatever it takes to reach the answer *I* wanted, dammit!" is the rallying cry.

[nystateofmind]

I love how the second e-mail laments "purposivism" and that the Supreme Court is rewriting Title VII, yet is disappointed that the Court did not look at legislative history or the comments of some 1964 Congresscritter to achieve a specific result that is the opposite of the text of the statute.

Like the decision or not, Justice Gorsuch does not change the meaning of "because of" or the meaning of "sex." Just as in 1964, Justice Gorsuch properly framed this as whether the adverse employment decision was made that would not have taken place if the individual had been of the opposite sex. It is not Justice Gorsuch's fault that these employers fired the employees because Adam slept with Steve rather than Eve but if Bella slept with Steve nothing would have happened.

[NToJ]

Re: the third emailer. I sympathize with his view that this could diminish textualism, because I said something similar in an earlier post. But I think I approach it differently than this person. My view is that textualism will be weakened if it gets divorced from some semblance of original intended meaning. Bryan Garner has said he thought Scalia would have disagreed with Gorsuch--not on textualist grounds, really--but because "nobody ever thought of that" carried a lot of weight with Scalia.

What does that indicate? That textualism is a good enough method but not the endpoint for interpreting statutes. If Gorsuch's error was misapplication of textualism (which I don't think it was), that's easily confronted. Maybe that's what the author had in mind when he said the "reasoning that was embarrassingly thin." If Gorsuch's error was over reliance on textualism, there's no need to abandon the conservative legal movement for naked conservative policy preferences. There just need to be theoretical limits to when textualism serves a useful purpose. Surely there are legal academics exploring those limits today.

Lots of people are complaining in general terms about Gorsuch's conclusion. Alito and Kavanaugh had a lot to say that presumably conservatives agree with. Why don't they just coalesce around those two, rather than threatening to abandon consistent application of conservative legal principles?

All three complaints read very much like: We didn't get the outcome we liked and therefore there's something wrong with our legal theory. Maybe they should focus on whether Gorsuch was properly applying their legal theory, instead?

[loki13]

"Lots of people are complaining in general terms about Gorsuch’s conclusion. Alito and Kavanaugh had a lot to say that presumably conservatives agree with. Why don’t they just coalesce around those two, rather than threatening to abandon consistent application of conservative legal principles?"

Well, the Alito dissent is hot garbage. So why not the ... other dissent?

I think it's because it exposes the fundamental issue with textualism. At a very basic level, people would like some grand unified theory of judging that they could point to and say, "This will always give the correct results." But it doesn't work that way. Looking back to 1950, Karl Llewellyn already published the canonical (ahem) article showing twenty-eight rules/canons for statutory interpretations that have contradictions.

So we see it here; fundamentally, there is no real argument about the text of the statute. Nor is there real argument that the text stands for itself, and has been construed on its own terms, in ways that the drafters never dreamed of. Finally, despite what Kavanaugh said, the statute has been used for gender stereotyping (which includes homosexual and transgender) since at least Price Waterhouse- that more than 30 years.

...and yet, here we are. The desire for a deteministic theory, as opposed to a desire for jurist who will apply their methodologies in good faith and without partiality, is what leads to insanity.

[NToJ]

"Well, the Alito dissent is hot garbage."

I didn't think it was hot garbage. Although some of his arguments strike me as boneheaded (p. 8-9, I.B.2 analysis was very thing,
the consequentialist shit in IV is better policy argument than judicial argument, etc.) He mad several points that I find persuasive:

1) I think his reverse-prediction of what the public meaning of the 1964 CRA re: gay people was in 1964 (p.3) is far more likely to be true than not.

2) I slightly agree with Gorsuch on how sexual orientation can be attendant to sex for discrimination purposes (man and woman both engage in sex with women, but the employer fires the latter only) but I think it's a close question, and I agree with Alito's argument that this is very much just a labeling exercise. Too close for me to think the plaintiff should win.

3) I agreed with Alito's analysis in I.B.1 but I take it from your comments you're about to tell me why both he and I are way off base.

4) I also agree wholeheartedly with his analysis in II.A (supported by the evidence in II.B) re: "social context" (II.D). That's basically the contextual argument that Gorsuch's strict (arguably to a fault) textualism is missing.

5) I agree with Alito that Gorsuch's conclusion re: unambiguity is too ambitious. I think legislative history should not be the starting place for any analysis, but if the statute is unclear it can be some source for analysis. And I don't have any reason to doubt Alito's analysis of the legislative history.

[loki13]

First, there is nothing in Alito's dissent that isn't already in the other dissent, and better. Now, regarding your specific points:

1. His "reverse prediction" is cut out of whole cloth; here, I will give you an easy example.
Employer says that he is firing Mary for having short hair, even though Bob is allowed to have short hair. BUT WAIT! That's not discrimination on the basis of sex, says Alito, because no one who passed the law could have imagined that discrimination on the basis of "sex" was the same as "hair length."

It's just silly word play.

2. It's the exact opposite in terms of "word play." Instead, we are simply avoiding silly word games with pleading standards (I am not discriminating against you because of a gender sterotype, just because of your sexual orientation). This is nothing more than Alito, as usual, engaging in results-oriented jurisprudence.

3. It is interesting that Alito feels the need to re-litigate Price Waterhouse; notice the weasel. While the majority only has to mention it in passing, he has to go out of his way to discuss issues from the plurality, attempt to say that it's "really" about something else (yes, a case can have more than one major impact on the law- PW is cited both for gender stereotyping AND mixed motive) and so on. Guess what? If Alito got five other judges to agree, he could write his own law ... which is what he is trying to do. But he's wrong on both the text and the last 30+ years of Title VII.

4/5. Again, it's fine if someone wants to just say, "Hey. I'm all about intent. I think that, at the time, homosexuality* was a known class that would have received protection from the legislature. It didn't. YADA YADA YADA exclusio alterius, let me add in stuff from legislative history." I kid, mostly, but that is a time-honored, mostly liberal method of statutory analysis. I just think that Alito's opinion is insanely disingenuous and results-oriented. It's basically Breyer with a nasty wig and a parade of horribles.

(And no, I don't agree with the legislative history he provides. This is a fun story, largely debunked, and even if it were true, which it isn't, the intent of any particular Congress Creature is irrelevant to the text of the bill; it wouldn't matter if someone thought that by passing this they would forevermore enshrine discrimination again Moonies, or Mormons, or both.)

*Weirdly, I don't think you could the same argument for transgendered individuals, who probably have the most clear argument with regard to sex discrimination and the lack of consideration given to them at the time.

[NToJ]

1. On the reverse prediction I meant his reverse prediction that if you polled people in 1964 they would tell you this was not the intended result of the CRA. I agree with you that his rebuttal to Gorsuch re: sexual orientation discrimination has nothing to do with sex is unpersuasive. I think you have to know the person's sex to successfully discriminate against them on the basis of sexual orientation.

2. I take your point re: pleading standards and the current state of the law does have bizarre results. I wish Congress fixed it.

3. Fair. Not my area of law, as you probably surmised.

4/5. I think textualism was supposed to stop people like Alito from cherry-picking any particular Congress Creature's opinions to justify their results-oriented holding. And I think it's a powerful and useful tool for weeding out disingenuous deciders. But what about the situation where it isn't any particular Congress Creature, but all of them? I just have a hard time believing that any legislator in 1964--a time in which gay people were treated horribly--intended this result. I'm more likely to conclude that they intended not this result. And I subjectively believe that, textualism can't be a categorical substitution for original intent. I'm willing to be persuaded otherwise. If there's any evidence, at all, that the legislators responsible for the 1964 CRA wanted to protect gay people from employment discrimination, I'm all ears.

[Josh R]

But what about the situation where it isn’t any particular Congress Creature, but all of them?

According to Scalia’s coauthor Bryan Garner (The Interpretation of Legal Texts), Scalia would take into account that no one in 1964 thought Title VII applied to sexual orientation. However, Garner agrees with Gorsuch.

In particular, Gorsuch said:

we must be attuned to the possibility that a statutory phrase ordinarily bears a different meaning than the terms do when viewed individually or literally. To ferret out such shifts in linguistic usage or subtle distinctions between literal and ordinary meaning, this Court has sometimes consulted the understandings of the law’s drafters [noting that for example intent leads to interpreting "vehicle" to exclude aircraft in the National Motor Vehicle Theft Act]. [...] The employers, however, advocate nothing like that here. [...] Rather than suggesting that the statutory language bears some other meaning, the employers and dissents merely suggest that, because few in 1964 expected today’s result, we should not dare to admit that it follows ineluctably from the statutory text.

[NToJ]

Unless Gorsuch is willing to say that he believes the result confirms to the original intent of any id the legislators of the CRA, I’m not persuaded he was right to employ textualism.

[Josh R]

I thought textualists ignore intent when the text is unambiguous.

[NToJ]

I disagree with Gorsuch that the text is unambiguous, in context. But I think it’s more precise to say that textualism will not resolve competing claims about intent differently than the text, if the text is unambiguous. And we don’t have competing claims, here.

[Josh R]

What do you think the possible alternate meanings of "discrimination because of sex" are?

[NToJ]

Discrimination against women.

[Josh R]

3) Alito argues sex stereotyping only implicates sex discrimination if the stereotype disadvantages women or men as a group. And since the sex stereotype that you should be straight impacts women and men equally, it doesn't qualify as sex discrimination. Given that (as Gorsuch noted) Title VII protects the individual, Alito's conclusion strikes me as very wrong. Instead, both the gay man and the lesbian are subject to sex stereotyping, and the employer has doubled his liability exposure.

[David Nieporent]

It's not that Alito's argument here can't be right. It's that if it is right, it allows employers to discriminate against employees for being in interracial marriages. That doesn't disadvantage blacks or whites as a group in the same way that this doesn't disadvantage women or men as a group.

But nobody is prepared to say that an employer can fire someone for this reason when race is involved.

[LawTalkingGuy]

I read it as saying that textualism needs to be abandoned as The Conservative™ Legal Theory. Since textualism (good or bad) didn’t lead to The Conservative™ outcome in a case that was really really important to conservatives it can’t really be called The Conservative™ Legal Theory anymore.

[NToJ]

There is some nuance here. I presume that most conservative (and liberal for that matter) legal scholars agree that the legislature in 1964 never intended discrimination protection for gay people. (This is contrasted with wholly unanticipated applications of laws. Gay people existed in 1964, and most of us agree that the legislature just hated them, because it was 1964.) Since textualism is a subset of originalism, there's something happening with this opinion that causes conservative legal scholars to scratch their heads, aside from the policy result. How can textualism--which was intended to guard original intent--lead to a result that many agree is inconsistent with original intent?

My point is that there's no reason to throw out textualism entirely. There are degrees of textualists. Gorsuch has exercised the strictest of strict textualism, which probably would have been rejected by the original textualists.

[LawTalkingGuy]

“How can textualism–which was intended to guard original intent–lead to a result that many agree is inconsistent with original intent?“

One explanation is that this textualist approach is leading to a result consistent with an original intent. There also could be multiple intents here. For Gorsuch and the majority, Congress’s original intent was to create a “but-for” test with the protected characteristics no matter how many other factors existed. That’s supported by the text and could partly be what Congress had in mind even if they also didn’t intend it to include LGBT people probably because they never thought to even ask the question.

[NToJ]

"There also could be multiple intents here."

Agree. And if I believed that there were multiple original intents, some that would support this result, and some that would not, I'm open to persuasion. But I don't believe that to be the case. I believe the original intent on this issue was uniform. Without some evidence (beyond the text, admittedly) I'm not persuaded that this is the type of statute or case that textualism exists to constrain. This feels more like a scrivener's error, and I don't accept scrivener's errors as original intent.

[James Pollock]

" Gay people existed in 1964, and most of us agree that the legislature just hated them, because it was 1964."

"Hate" is too strong a word. legislators didn't so much hate the gays as remain indifferent to their concerns, because there weren't enough gays to get someone un-elected. By contrast, in many places, there were (and are) enough people hostile to the gays to get someone un-elected.
Writing laws that have unexpected sweep is not a new phenomenon. For example, look at all the people currently struggling with the notion that black people shouldn't be murdered by police, even though that question would appear to have been settled back in 1868.

[NToJ]

All 50 states had anti sodomy laws. Illinois became the first state to repeal its anti sodomy law three years before the CRA (and so 49 out of 50 of them had it at that time). I think the next one was Hawaii in 1971. Congress never repealed it in DC. (DC did in 1981 after it had secured home rule.) Lawrence v. Texas was 2003, and more than a dozen states had them even then.

The idea that legislatures were merely indifferent to gays is ahistorical and does a disservice to the countless people who brought us where we are today. This country mistreated the shit out of them, since the beginning. It was a hard fought battle, and not against mere apathy. To say it wasn’t hate strikes me as apologism.

[David Nieporent]

Gay people existed in 1964, and most of us agree that the legislature just hated them, because it was 1964.

Not precisely. For the most part, in 1964 people deemed homosexuality to be conduct, not identity.

Not sure that really changes your point, but I just wanted to note that.

[The Grand Moff Tarkin]

Tenure gives you no protection at all. You have probably already written enough for the howling mobs to come after you and demand your termination.

[Sarcastr0]

What are examples of tenured Profs fired for their right-wing views?

Note: the right has in the past tried hard to get tenured liberal profs fired: https://www.insidehighered.com/advice/2017/06/30/right-using-comments-left-wing-professors-delegitimize-higher-ed-essay

[The Grand Moff Tarkin]

I am disheartened because I can no longer believe that we are a country of laws anymore. We will be ruled by whatever whims motivate a majority of the Justices on the US Supreme Court. The liberals pushed for dynamic interpretation of the Constitution; now they have dynamic interpretation of statutes. How the hell am I supposed to advise policy makers about what the law means?

I am a tax lawyer who mostly works for the government. I’ve spent a good part of my career fending off specious arguments made by tax protestors using novel interpretations of the Internal Revenue Code. Well, for all I know, the Court may choose to adopt some of those novel interpretations.

[Sarcastr0]

Gorsuch. Did. Not. Use. Modern. Language. In. Interpreting. This. Statute.

This opinion is not dynamic interpretation.

You may not like it, but speak to what it is, not some made up strawman.

[loki13]

I feel like so many people have not even bothered reading his opinion.

It seems like there are so very many people that are just regurgitating what other people told them, or what they think must be true.

[Sarcastr0]

This guy is an ERISA lawyer, ffs!

Amazing what partisanship can do to reasoning faculties.

[loki13]

Weirdly, I was going to say "Amazing what ERISA can do to reasoning faculties."

*shiver*

Partisanship, too.

[James Pollock]

After whining about other people just regurgitating what they've heard, your foray into partisanship is just aggressively humorous.

[David Nieporent]

I feel like so many people have not even bothered reading his opinion.

Gee, way to go out on a limb there.

[librarian]

My guess is, the justices Roberts and Gorsuch take a hard libertarian/conservative turn after this. The Cake case will be back and the justices will vote for freedom of speech. Abortion will be curtailed back to 12 weeks. This will be more than enough to placate the right.

Abortion trumps LGBTQ on the right.

[TheAmazingEmu]

I think arguing that this is purposivism disguised as textualism is an absurd opinion. It sounds like the argument is that purposivism is the goal of having the law achieve the purpose the Judge intends. Purposivism is having the law achieve the result the Judge thinks the legislature intended it to have. This is emphatically what the dissent was doing.

I think there is strong value to this interpretive technique as long as you can objectively determine what the legislature intended and you aren't confusing it with your own desires, but the majority was absolutely not doing this.

[Aktenberg78]

Would the same liberals who support the outcome support an employer refusing to hire anyone, gay or straight, who is HIV+? If not, why not, and why is that principled?

[Sarcastr0]

In 2008, Congress amended the ADA to clarify that its protections extend to people living with HIV.

[Aktenberg78]

Suppose the law wasn't there. Would you support, legally, such a move?

[LawTalkingGuy]

Under the ADA or Title VII?

[Aktenberg78]

Title VII. Or would you claim that it has a "disparate impact" on gay men (all while simultaneously claiming that HIV is not a gay disease)?

[loki13]

No offense, but the trouble with conjuring up hypotheticals from your posterior to try and prove a point is that .... they aren't very helpful.

[James Pollock]

"while simultaneously claiming that HIV is not a gay disease"

Virii don't have genders, so they are flatly incapable of being gay.

[Aktenberg78]

75% of new HIV cases occur in homosexual men.

[James Pollock]

100% of new HIV cases occur in human beings. That's why the H is there in HIV. 0% of new HIV cases occur in table lamps. Got any more useless statistics you'd like to cite? Or just claim without sourcing?

[loki13]

It would have to be under the ADA, because that's the correct way to look at it.

[TheAmazingEmu]

I would acknowledge that it isn't covered under Title VII as long as the employer isn't using HIV as a pretext. Thankfully, the ADA exists for that reason. If the employer is firing all employees who had HIV regardless of who they had sex with (or even if they hadn't had sex at all and maybe was born HIV+ because their mother had it), I would think that employer is a terrible person but isn't violating Title VII.
More simply, I would also acknowledge that it is the correct result if a employer who has three employees fires one for being transgender because Title VII wouldn't apply there.

[James Pollock]

"he disembowled Trump's last shot at re-election, so Justices Ginsburg and perhaps Breyer will be replaced by President Biden."

Unless Mitch pulls a new "McConnell Rule" out of his ass that says (democratic) Presidents aren't allowed to nominate Supreme Court justices in the last 4 years of their term of office.

[TheAmazingEmu]

If the Senate remains in Republican hands and never ends their session, I suspect McConnell isn't going to allow a vote on a candidate he doesn't support. Even if he did allow a vote, there's a strong chance he would ensure his party votes against the candidate. If the Democratic party wishes to ensure their nominees for Judges are confirmed, they need to control the executive branch and the Senate because that's what the Constitutional mechanisms provide for.

[Shadowy Agent]

What bothers me the most about these comments, is how much they wish that originalism and textualism give only the results they want. Look it up Justice Scalia and Ginsburg were complete opposites in ideology yet in Criminal Procedure cases they tended to arrive to similar outcomes. Most of these outcomes were the dissent because they were viewed as too criminally friendly. Plus if Textualism and Originalism are your only guide then you think Dred Scott was correctly decided and Brown decided incorrectly.

[NToJ]

As a matter of fact, Scalia and Ginsburg agreed with each other more than not in all cases.

The results in Brown and Dred Scott are both probably inconsistent with originalism. (So what?)

[NToJ]

To be more precise, should be across all types of cases.

[Sarcastr0]

Reported.

What an a-hole.

[LawTalkingGuy]

Question: do you consider yourself a good person?

[Rev. Arthur L. Kirkland]

"I hope one of the new third worlders you champion breaks into your house and rapes your wife. Just so you can see you’re not immune from the disaster you want to bring here."

The Volokh Conspiracy's ostensible "civility standards" are illuminative.

[Aktenberg78]

Sorry, but when you liberals demand things that will lead to ruin to everyone but yourselves in your gated communities, it's an act of morality to wish that you get your just deserts.

[Bob from Ohio]

"Reported. "

Snitch.

[LawTalkingGuy]

It’s moral for you to wish for someone that you do not know to be severely physically and emotionally harmed so that someone else can learn a lesson from that? What kind of insane moral theory is that?

[Aktenberg78]

So, in your view, it's moral for liberal Jews in a place like Scarsdale to foist "diversity" on the white working class in Brooklyn and Queens, while living in their lily white communities and virtue signaling about BLM on Facebook?

[LawTalkingGuy]

No idea. But whatever you’re complaining about is definitely not as immoral as hoping someone gets raped.

[Aktenberg78]

Lies.

[LawTalkingGuy]

No. Just normal moral and ethical behavior. You should try it some time.