Let's talk about Justice Kavanaugh's vote in National Coalition for Men v. Selective Service System

Why? Why? Why?


In March, I wrote about National Coalition for Men v. Selective Service System. This petition challenged the federal policy that excludes women from the draft. At the time, I considered whether the Biden Administration would defend the constitutionality of the policy. Ultimately, after several extensions, the SG filed a brief that punted on the constitutional question. Rather, the SG asked the Court to deny the petition so that Congress can change the policy. Sensible enough.

Today, the Court denied cert. And there was a statement respecting the denial of certiorari. It was written by Justice Sotomayor, and joined by Justices Breyer and Kagan. Scratch that. Justice Kagan did not join. It was Justice Kavanaugh. On quick read, I simply assumed it was Justice Kagan. The team at SCOTUSBlog made the same error.  But no, it was Justice Kavanaugh.

Let's walk through the statement. Justice Sotomayor begins with a rousing statement about the original meaning of the Due Process Clause of the Fifth Amendment. Scratch that. Justice Sotomayor writes about the Fifth Amendment's Equal Protection Clause:

The Fifth Amendment to the United States Constitution prohibits the Federal Government from discriminating on the basis of sex absent an "'exceedingly persuasive justification.'" Sessions v. Morales-Santana, 582 U. S. ___, ___ (2017) (slip op., at 9) (quoting United States v. Virginia, 518U. S. 515, 531 (1996)); see Califano v. Westcott, 443 U. S. 76 (1979); Califano v. Goldfarb, 430 U. S. 199 (1977); Weinberger v. Wiesenfeld, 420 U. S. 636 (1975); Frontiero v. Richardson, 411 U. S. 677 (1973). Cf. Bolling v. Sharpe, 347U. S. 497 (1954).

Next, the statement expressed agnosticism about how Congress was addressing that issue. Scratch that. Justice Sotomayor quoted legislative history (!) describing the "hope" (!) of one member that a provision may be "incorporated" (!) in a future bill.

Just a few months ago, the Senate Armed Services Committee held a hearing on the report, where Chairman Jack Reed expressed his "hope" that a gender-neutral registration requirement will be "incorporated into the next national defense bill." Tr. of Hearing on Final Recommendations and Report of the [NCMNPS] before the Senate Committee on Armed Services, 117th Cong., 1st Sess., 21 (Mar. 11, 2021).

I need to check Reading Law to see what Justice Scalia thought about citing aspirational statements of legislative history.

The statement concludes with a firm deference to Congress on matters of national affairs. Scratch that. The dissenters will give Congress a bit of time to resolve this issue, but if they don't reach the right result, the Court will.

It remains to be seen, of course, whether Congress will end gender-based registration under the Military Selective Service Act. But at least for now, the Court's longstandingdeference to Congress on matters of national defense and military affairs cautions against granting review while Congress actively weighs the issue. I agree with the Court's decision to deny the petition for a writ of certiorari.

That's a really nice bicameralism-and-presentment you got there. It would be a shame if something happened to it.

This statement is entirely predictable from Justice Sotomayor. Ditto for Justice Breyer. So let's talk about Justice Kavanaugh's join.

First, I am no longer convinced that Justice Kavanaugh is an actual originalist. Sure, he can talk the talk, but time and again, he writes and joins opinions that have no grounding in the original meaning of the Constitution. In a granted case, he would follow non-originalist precedent. But when writing about the denial of certiorari, he is free to write about the Constitution's original meaning. Here, he endorsed one of the most atextual opinions in modern Supreme Court history, Bolling v. Sharpe. And this citation was not a one-off. Justice Kavanaugh also cited Bolling, along with Brown in his Bostock dissent. Now I think the outcome in Bolling can be justified on originalist grounds–Randy and I talk about that case in our book. But an unexplained citation to Bolling does not reflect the work of a careful originalist. And his brief footnote in Bostock doesn't cut it. (Democratic Senators wasted so much time asking judicial nominees if Brown was correctly decided; they should have asked about Bolling to watch the noms squirm).

Second, I fear that Justice Kavanuagh will forever try to prove that he is fair to women. In the past, his jurisprudence was not exactly pro-feminist. See Azar v. Garza. But the Blasey-Ford allegations, coupled with his contentious second confirmation hearing, may have changed that calculus. This join is a useful way for Justice Kavanaugh to virtue signal he favors gender equality.

Third, I think this opinion reflects another savvy move from Justice Kagan. Why didn't she join the statement? It was basically a tribute to Justice Ginsburg. I'm sure Justice Kagan agreed with it. But when four Justices join a statement respecting the denial of cert, that suggests there are four votes to grant in the future. Justice Kagan's decision to sit out gave Justice Kavanaugh a lane to join.

The past few weeks have been very sleepy. The Court has issued a string of unanimous decisions in relatively unimportant cases. A storm is brewing for the end of the term. Will it be Red June? Or more likely, Purple June?

NEXT: N.C. County Removes Coca-Cola Machines from Government Facilities Because of Coke CEO's Speech About Georgia Election Law

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  1. “virtue signal he favors gender equality.”

    Or maybe he actually favors gender equality. There is an idea!

    1. Kav’s been called the worst rapist since Bill Clinton or Ghengis Khan. To play devil’s advocate for Josh (I don’t know why) but I’m sure it has an effect on him materially that he’d try to make up for it, even if it wasn’t true.

      1. OR he wants a pound o flesh.

        What better way is there to fight back against feminists who concurrently demand both equality and special status than denying them the latter?

        I see this as giving the middle finger to some feminists who dearly deserve it…

        1. Lol.

          Liberals: Kavanaugh might actually care about equality
          Dr Ed: No actually he’s just an angry and bad person out for revenge and I think that’s awesome.

    2. Josh clearly does not believe there is such a thing as having a value, principle, or virtue that exists independently of any particular transaction or method of gaining something in the future. Like he simply cannot conceive of the possibility that someone might have a sincere belief that doesn’t have anything to do with obtaining material benefits at some later point.

      1. You can say that again!

    3. “gender equality”

      Nothing says equality like being killed in combat or raped after capture. Yeah equality!

      1. Equality means both the benefits and responsibilities of citizenship.

  2. Or … Kagan, as she has stated in pretty much every single cases, actually believes what she says about precedent, and is therefore uncomfortable with directly overruling a case, as would be required here?

    Like I dont know how helpful it is to assume malice here were there is a perfectly reasonable explanation …

    1. Lately Blackman has really been putting the conspiracy in Volokh Conspiracy.

      Maybe Kavanaugh put his name on it just to warn Congress “We have the votes, shit or get off the pot.”

      1. ” Lately Blackman has really been putting the conspiracy in Volokh Conspiracy. ”

        What else is left for conservatives these days, other than perhaps the ankle-nipping?

      2. “just to warn Congress “We have the votes, ”

        I’d like to think that you’re correct

      3. Or, he actually believes it is a constitutional problem and wants to say so.

        1. It is a constitutional problem. They want to give Congress the first pass at fixing it. The remedy could be making women to sign up (which imposes a mandate and may require budgeting $) or striking down selective service. The Supreme Court imposing either mandate would be unpalatable and problematic. Congress should have a go at trying to remedy it first.

      4. ‘ Maybe Kavanaugh put his name on it just to warn Congress “We have the votes, shit or get off the pot.” ‘

        Or maybe someday Congress will do more than warn Kavanaugh, by declaring ‘we have the votes; here are your new colleagues.’

  3. The issue with the Selective Service Act and trying to typecast support for women being drafted as “conservative” or “liberal” is that the issue has crossed unusual boundaries; everybody’s been all over the place.

    Second Wave feminists used to be for women and the draft, wanting absolute equality and all that. Conservative women (Phyllis Schlafly) argued against it, because of their support for chivalry/double standards. Conservative men *used* to be against it, because women are ineffective in combat, but many are these days are for it as a way to tweak the noses of the left because liberal women want to maintain the double standards they used to be against, and because chivalry is dead.

    A more thoughtful approach is the women will be “in the rear with the gear” thus opening up more spots “at the front” for men in any major conflict anyway. So a draft of women won’t be a problem, at least theoretically. In experience, pregnancy is a frequent issue.

    1. Modern combat is not like it was on D-Day, with a bunch of men storming beaches. The front line is not where you think it is. Women can drive tanks into combat, fly planes (two areas where small stature is actually an advantage), or even remotely pilot drones. You certainly don’t need to be 6’5″ and 280 lbs on a submarine. In fact, its a disadvantage, might have to duck a lot. Increasingly, too, the front line of a lot of modern combat is in cyberspace.

      1. I’m not saying women aren’t doing a find job flying helos, etc., or that such work isn’t important.

        But fighting wars still requires young men with guns shooting people shooting at them, something women aren’t particularly adept at when you add in the particulars. Actually *winning wars* (something we don’t do much of lately) takes young men with rifles on street corners, occupying territory, again, something women aren’t particularly adept at when you add in the particulars.

        Remember, as well, we are talking about the draft here, so it would be for a major conflict, not some invasion of Grenada.

        1. The solution most reasonable people settle towards, excluding extremes on left and right, is just, have a physical standard, if that innately creates some gender imbalance, so be it.

          1. The thing is, and I had this debate time and again with my female coworkers when I was in the military, and with female vets afterwards, is that invariably, when the gender imbalance is revealed, the standards will be lowered to be more inclusive to women. Indeed they have been in the past, and were again not that long ago, in order to get female Rangers, to the detriment of combat capability.

            Note, this is a separate argument than how females in a combat unit affect/effect morale and such.

            1. Not all standards have a continued relevance to the modern warfighter.

              I’m also not sure if maximum combat capability-per-person is a particularly relevant metric for the kind of stuff we tap our military to do either.

        2. I don’t see that Israel is harmed by having women required to serve in the IDF.

          1. That is a strong point.

            For those who reason, at least.

          2. And you also don’t see young women in the IDF in frontline units, and for many reasons. Look into if you’re willing.

        3. mad_kalak : “but fighting wars still requires young men with guns shooting people shooting at them, something women aren’t particularly adept at when you add in the particulars”

          Historically, young men with guns aren’t particularly adept at shooting people shooting at them. Look back at accounts of combat and you find soldiering is a learned skill. The unexperienced are often grossly incompetent when first exposed to battle.

          And don’t think it’s a question of temperament either. I had a female drill sergeant in basic training. That wench was mean as a snake….

      2. Sure, but, like I dont have a problem with strict physical standards in the military. Even if your job is more computerized, there is still a need. And generally I’ve heard if all you are gonna be doing is say cybercrime, then ofc they let you in if you are smart but not relatively fit.

        I recall a bunch of rather poorly timed articles in the local newspaper about how police physical and mental standards have gotten “too strict” which excluded too many women and it was full of gems like, oh you don’t need to be that strong with a gun and so on … and then police brutality became the issue to talk about and that was quickly abandoned as being quite ridiculous.

        So I take issue with intentionally lowering standards to add more women. If modern combat requires lower standards, sure. My view is generally, people ought to be treated equally, if biological differences or even cultural differences create an imbalance, so be it.

        On the selective service, frankly we have a volunteer military anyway. I think the solution congress might lean towards is my view, just scrap it.

      3. “Modern combat is not like it was on D-Day”

        Infantry still wins battles, 99% of women are not fit for such a role, no matter what promotion hungry female academy grads and their political enablers think.

        1. ” Infantry still wins battles ”

          Borat would add: ‘Of course this is so — any idiot can see truths from most glorious and virtuous, compelling infantry victoriousness at Vietnam, Afghanistan, Grenada, Cambodia, Iraq, Nicaragua, Iran, Yemen, Korea, Sudan, El Salvador, Lebanon, Honduras, Saudi Arabia, Panama, Kuwait, Libya, Philippines, Zaire, Bosnia, Haiti, East Timor, Pakistan, Serbia, Georgia, Cameroon, Djibouti, Somalia, Uganda, Jordan, and most especially the righteous and decisive infantry military campaign Battle At Lafayette Square’

      4. Infantry people always think infantry is the key to winning a battle, lol. Sounds like you are well prepared for WWI.

        1. Quit eliding. We are talking about wars, and not battles. Lots of things win or lose specific battles. At one time it was artiliary that made all the difference. We’re talking about WARS not battles.

          Have you not noticed lately, that young men with AKs and a little enthusiasm are winning the wars lately and not America, women in the military or not?

          1. No problem. You can have your men with rifles, with 70 lbs of gear. I will throw in ceramic armor plates. I will take all the women, tanks, planes, helicopters, drones, missiles, ships, trucks, artillery, and nukes. We’ll see how far your young men with rifles get.

            As far as “young men with AKs and a little enthusiasm are winning”- or at least not losing – thats a function of political calculus. There is little enthusiasm on this side of the Atlantic for the Middle East. There is little appetite to absorb the media images of the collateral damage that would necessarily follow if we actually tried to win.

            1. Democracies are better are winning wars, the political scientists said, because free countries out produce stuff (including human capital) compared to other political systems. Bunk. They lose long term because of a free press and some heartstrings tugged by it. Press freedom is the first thing to go for a reason.

              And yes, young men with AKs and a little enthusiasm win wars, despite all the women flying helicopters and driving ships there are, or ever will be, at least at this current level of war fighting technology. And even when said democracies get serious, you know, like defeating ISIS, it’s not done with the nukes, and it’s young men doing the killing on the ground, supported by their fellow (women included) doing those other things, like it always is.

              1. Egads, having our heartstrings tugged and not blindly following dictators into war. Oy, the horror.

      5. Modern combat is not like it was on D-Day, with a bunch of men storming beaches.

        Well we know that the Supreme Court is able to discern rights that the Constitution and its Amendments neglect to mention. As the court stated in Obergefell, such rights can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”

        The court being better informed, what objection could there be if it decided to dictate the requirements of national security, and how wars shall be fought?

      6. Women are actually at a biological disadvantage in flying fighters — it has to do with the G forces and why some believe that we will soon eliminate actual pilots.

        1. No, this myth was debunked a while ago. https://www.liebertpub.com/doi/pdf/10.1089/jwh.2005.14.764

          As long as women’s flight suits are appropriately fitted, women do fine as fighter pilots and can tolerate the g-forces equally well.

    2. ” So a draft of women won’t be a problem, at least theoretically. In experience, pregnancy is a frequent issue.”
      No sexism here. Never.

  4. Most males will not see combat. There is no reason women should evade the draft. But, it is the job of Congress to make the decision.

    1. One obvious question. Women are equal according to this woke military. How come they get sexually abused in the military? When the boorish lout grabs them, why not do a jujitsu move on him from their equal military training?

      1. Untold aspect of current woke status in the military has been the reporting by MALE rape victims….

    2. Most males will not see combat.

      Generally true – as recent as WW2 only 10% were in direct combat roles, the rest were in some form of supply. Where as 80+% of russians and germans were in direct combat roles. The british were approx 30-40% direct combat roles (though with the caveat that is an educated guess for the british)

    3. True, but if there is a draft, even more staff jobs get filled by women capable of logistics or yeoman work, but not of lugging 70 lbs of gear and a rifle as a grunt. Naturally, this means more men will be at the front and less men would doing staff work, in any total war scenario that is.

      Thus, even if there is a draft for women, it’s unequal for men inherently, as it means even more of them would see combat than if there isn’t a draft for women.

  5. Too many “scratch that’s”. You lost me

  6. The other option is Congress could simply eliminate registration altogeather.

    1. That wouldn’t let either party use it as a political football against the other, so naturally it won’t happen.

  7. “The Fifth Amendment to the United States Constitution prohibits the Federal Government from discriminating on the basis of sex absent an “‘exceedingly persuasive justification.'”

    W. T. F.?

    “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation”

    So I look up “Sessions v. Morales-Santana”, and I find, “The statutory distinction between the physical presence requirements for transferral of derivative citizenship for unwed citizen mothers and unwed citizen fathers of foreign-born children violates the Equal Protection Clause of the Fifth Amendment, and it is up to Congress, rather than the courts, to create a uniform solution that does not disadvantage any person on the basis of gender.”

    Equal protection clause of the 5th amendment. Equal protection clause of the 5th amendment.


    I’ve looked at the thing a dozen times, and there isn’t one.

    1. It’s called reverse incorporation, the fifth amendment’s due process guarantee incorporates the 14th amendment equal protection guarantee according to the Court in Bolling v Sharpe.

      1. I can sort of see the basis for the doctrine, if I squint and concentrate hard on not thinking like an originalist, and forget everything I know about the first, oh, 130 years of America history.

        But, God, that’s a stupid way to describe it, when anybody can pick up the Bill of Rights, and read the 5th amendment, and see it doesn’t have an equal protection clause.

        1. Well the other option is that there is no equal protection guarantee that the federal government is required to adhere to.

          1. There’s still no clause, and anybody who can pick up and read a copy of the Bill of Rights can see that. The legal community shouldn’t be referring to nonexistent clauses. There must be a half dozen ways at least you could refer to the doctrine without inventing obviously nonexistent clauses.

            The need for a federal equal protection ‘clause’ is mostly a result of the failure to respect enumerated powers doctrine, anyway. Outside of federal lands where the federal government governs as though it were a state, (And thus is subject to the 14th amendment.) you’re hardly supposed to be interacting with the federal government at all, since it lacks the general police power.

          2. Bolling v Sharpe is a very bad decision from a textual standpoint.

            Yes, it accomplished the goal of what the judges wanted….which was to make sure a big chunk of the 14th amendment applied to the Federal government. But from the standpoint of the text…it really wasn’t there. The judges REALLY needed to twist the 5th amendment into a pretzel to get it there.

            One of the problems with decisions like this, is that they twist the Constitutional all out of sorts. The proper way to do things would be to do an amendment. Or at least pass a law. Instead, when the SCOTUS twists the Constitution into a pretzel to get its desired result, it weakens the Constitution as a whole.

            Next time an expansion or abuse of power comes up, the Constitution is “twisted” again. And if it is “twisted” enough…it stops being a meaningful limit on power and authority.

        2. This also shows how pointless it is to criticize Kavanaugh for not taking an originalist approach to Equal Protection jurisprudence. Nothing about that jurisprudence, particularly as regards sex discrimination, bears any resemblance to the original understanding or original public meaning of the 5th or 14th amendments. But it has been developing since the FDR administration, and there is no way to put that genie back in the bottle, even if one wanted to.

          1. Trying to do an originalist understanding of the equal protection clause is kind of a ridiculous exercise anyway. The clause clearly says “person” and you could find contemporaneous sources that say a person is a person not “a male.” But then contextually you know that the drafters likely didn’t intend it to eliminate sex discrimination although some pointed out it was broad enough to do just that. And contextually we also know that many people, particularly courts, didn’t view it that way, although some people likely clearly did. So now you’re trying to find a fake median person understanding of it. And then of course the originalist interpretation is completely divorced from the text as understood by modern readers. Like any young woman reading the text in a middle school civics class would have to be “um ackshually’d” by the teacher that when it says people it doesn’t actually mean what it says in plain English.

            1. But then contextually you know that the drafters likely didn’t intend it to eliminate sex discrimination although some pointed out it was broad enough to do just that.

              How can it be interpreted to do that when the same amendment protects the right of men to vote but not the right of women to vote?

              1. Exactly.

                They did the XV amendment more-or-less simultaneously with the XIV, which pretty effectively demonstrates (a) that the scope of the EP clause was understood to be much narrower than it is today, and (b) even if you view the EP clause as applying to voting rights (and thus that the XV was belt and suspenders), that women could still be excluded from the franchise.

                This was not lost on the feminists of the time. EC Stanton and SB Anthony, for example, both opposed the 15th amendment b/c it did not include women (p.s. don’t look too close at what they said about black people in that regard….)

            2. The real problem is that “equal protection” just meant that they were prohibiting outlawry. It didn’t mean identical treatment, it meant that you couldn’t place people outside the protection of the law.

              Is it illegal to rob men? Women? Yeah, both, mission accomplished.

              1. According to Raoul Berger, the purpose of the 14th amendment was to constitutionalize the Civil Rights Act of 1866, so that it couldn’t be simply voted away in Congress. The Civil Rights Act of 1866 secured to blacks the same right to contract, to hold property, and to sue, as whites enjoyed, and the “equal benefit of all laws for security of person and property.”

    2. “Sessions v. Morales-Santana”

      I hate this case so much. It makes my blood boil.

      Firstly, yeah, there is nothing in the constitution that doesn’t allow one to have some gender differences in immigration law. Nothing. Second of all, women do tend to care of children more than men IN IMMIGRANT COMMUNITIES, so its a reasonable distinction to make!

      And fine, Ill take it that equality is a good thing in it of itself. But the solution the court found wasn’t to help the person who sued, it was to kick out half a million people who were not involved in the case by preemptively shortening the visa time for women with no notice whatsoever.

      Like how is that remotely consistent with fair notice or any sort of standing requirements?

      And the news the next morning was like, oh yay women’s rights and equality upheld but … you just kicked out a bunch of women from the country, as well as the dude who sued. It was so ridiculous.

      1. And the groups that were supposed to care about immigrants took a largely symbolic point in favor of gender equality over lives of actual immigrants in this country with no notice, and it just felt extremely wrong.

    3. Equal protection clause of the 5th amendment

      It comes from Bolling v Sharpe, handed down the same day as Brown v. Board of Education. It was needed to deal with the D.C. schools, since they weren’t covered by the 14th amendment, and ruled on the meaning of due process of law in the 5th amendment, holding that

      the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The ‘equal protection of the laws’ is a more explicit safeguard of prohibited unfairness than ‘due process of law,’ and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.

      Bolling has been said to be “the first case that explicitly held that though the Equal Protection Clause is textually inapplicable to the federal government, the Due Process Clause of the Fifth Amendment imposes identical requirements.”

      This brings to mind the comment by Learned Hand: “I have never been able to understand on what basis [Brown] does or can rest except as a coup de main.”

      On the other hand, maybe anybody who doesn’t think that due process of law outlaws gender or race discrimination is simply a depraved individual, with whom decent people should not associate.

    4. I’m not sure where your quote is from, but the opinion 1. doesn’t use the phrase “equal protection clause” and 2. explains that

      As this case involves federal, not state, legislation, the applicable equality guarantee is not the Fourteenth Amendment’s explicit Equal Protection Clause, it is the guarantee implicit in the Fifth Amendment’s Due Process Clause. See Weinberger v. Wiesenfeld, 420 U.S. 636, 638, n. 2, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975) (“[W]hile the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is so unjustifiable as to be violative of due process. This Court’s approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment.” (citations and internal quotation marks omitted; alteration in original)).

      1. This Court’s approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment.

        I don’t know if your comment was directed to me but I quoted from the law review article that I linked to in the post (click on the underlined text). Is it possible that the Supreme Court has always held that the equal protection clause does not add anything that is not already present in the due process clause? What would be the reason for a separate equal protection clause then?

        According to this source, “Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment. Even before the Court reached this position, it had assumed that discrimination, if gross enough, is equivalent to confiscation and subject under the Fifth Amendment to challenge and annulment.” So this source also agrees that the Court did not always hold this position.

  8. The Fifth Amendment to the United States Constitution prohibits the Federal Government from discriminating on the basis of sex absent an “‘exceedingly persuasive justification.'”

    What I still don’t get is why those who ratified the Fifth amendment didn’t realize that it gave women the right to vote in elections governed by federal law, such as in DC, and why those who ratified the 14th amendment didn’t realize the same thing about elections governed by state law. It’s almost as if they thought that the 5th and 14th amendments didn’t address that issue. Or did they think that there was an ‘exceedingly persuasive justification’ for preventing women from voting? Also, if the 14th amendment had that effect, why did Section 2 only protect the voting rights of male citizens?

  9. My guess is that Kav being trashed during his confirmation hearing might have made him a little more sympathetic to “men’s rights” issues and here he believe a “dose of equality” (or maybe equity….hahahahha) is just what the doctor ordered.

  10. Plenty of people were leery of Kav from the beginning but the jihad against him led to a rally around the flag effect.

    If he and Gorsuch [already on probation because of the ludicrous Bostock case] don’t live up to our expectations, the next wave of GOP court nominations are going to include Marjorie Taylor Greene types.

    1. They’ve already *not* lived up the expectations of the average Republican, to include ACB, not that they care. Still better than Garland or anybody Hillary would have nominated at least.

      Honestly, though, wouldn’t any nominee list also be put together by outsourcing it to the Federalist Society, and thus have the same types of namby-pambies?

    2. How has your life been negatively affected since Bostock?

      1. Is that the standard for evaluation of Supreme Court decisions? If it doesn’t impact my life negatively then all is OK and I should quit my griping?

        1. I don’t think LawGuy would be willing to apply that “personally negatively affected” standard to an awful lot of policies he may disagree with philosophically, because the result will be like dividing by zero.

          1. I mean I just think i its funny that people are really pissed at Gorsuch on this particular case for 1) doing exactly what they wanted him to do in the first place: focus exclusively on the text and 2) in a case that has widespread popular support and that doesn’t affect them negatively in anyway unless they actually want to fire someone for being gay and are now thwarted.

            1. Because really, when the passed Title VII back in 1964, they were totally using the same meanings for the words “sex” and “gender” as when the case was decided in 2020. Yep. Totally textualist, from a post-modernist perspective at least.

              1. Yeah. He used the contemporary dictionary definitions. And then used basic logic.

                Try explaining why you fired someone for being in a same-sex relationship or having same-sex attraction, without referencing sex at all.

                1. See, I kinda expected that reply. It’s interesting, that Kav favors the “historical understanding” and “tradition” standards for evaluating gun laws after Heller, but in Bostock, that seems to have gone out the window because, well, I’m not exactly sure.

                  And if the law is a problem, then you know, you change the law. But Congress didn’t. Yes, I realize by that standard portions of a lot of court decisions are problematic (which they are).

                  1. So that is a non-response. because you know it is logically the only answer under the text of the statute. It is impossible to fire someone for being in a same sex relationship and not have that be because of their sex.

                    I mean under your reading of title vii, you could fire someone for being in an interracial relationship but it would somehow not be because of their race.

                    1. You like the result, so you’re using backwash reasoning to find it acceptable via a textual analysis, ignoring original intent, and, notably, the context and original meaning of the words. That’s okay. It’s an understandable human failing. Jefferson didn’t actually mean all mean are created equal when he wrote those words either, ya know.

                    2. Yes or no: under Title VII can I fire someone solely for being in an interracial relationship?

                    3. I honestly don’t see how interracial relationships have any bearing on the issue wrt Bostock, which was about “sex”. Please enlighten me before I put my foot into what you presume is some sort of intellectual bear trap.

                    4. It’s an analogy, chief.

                      Either explain why your logic does not prove too much – in other words, why your ‘only direct distinctions count’ logic cannot be applied to title vii to allow firing someone for being in an interracial marriage.

                      It’s a legit argument.

                    5. Okay. If you read 42 USC 2000-e2:

                      It shall be an unlawful employment practice for an employer –
                      (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.

                      As you can see, sex and race are in the exact same grammatical position after “because of such individuals.” Now if there is a purely textual reason why under this statute you can fire someone solely for being in a same-sex relationship, then it obviously must mean you can also fire someone for being in an inter-racial relationship.

                      “I am firing you because you are a man who married a man. This is not because of your sex.”

                      “I am firing you because you are black and married someone white. This is not because of your race.”

                      Any purely textual argument must necessarily lead to this result.

                      Which is why the criticism of Gorsuch’s Bostock opinion must necessarily abandon textualism unless they want to admit that employers can fire people for being in inter-racial relationships. To do this you need social and historical context: state laws on sodomy, the DSM declaring homosexuality a mental disorder, lack of legislative history or congressional debate, etc. All the things you would need to prove that while Congress would have wanted to protect someone for being fired for being in an inter-racial relationship, it would have specifically not wanted the same to apply to someone in a same
                      sex relationship.

                      Whatever this is, it’s not textualism, so the entire conservative project of pretending that textualism was the only legitimate method of interpretation, was wrong.

              2. Because really, when the passed Title VII back in 1964, they were totally using the same meanings for the words “sex” and “gender” as when the case was decided in 2020. Yep.

                Bostock does not rely on a different meaning for the word “sex” (or “gender”) than was used in 1964. It assumes that those words mean exactly the same thing now that they did then. Bostock is not about those words; it’s about the words “because of.”

        2. The “LawGuy Standard” involves uses dead kids as props for his political ploys and making lots of other false equivalents.

          1. It actually involves being a moral and empathetic person. Something you don’t seem to have a grasp on yet. But don’t worry, no one is a lost cause, not even you.

    3. Bostock is what convinced me Gorsuch is the best court appointee of my lifetime. He reached a result through logic that he probably didn’t desire – exactly what you should want in a justice.

      1. Reached a result through motivated reasoning you mean.

        1. Lol. No. He just did a textualism. He looked at the contemporary definitions of “sex” and “because of” and concluded that you cannot logically fire someone for being gay and have it be “because of sex.” You are necessarily referencing it when you do so. If you have a man dating a woman and a man dating a man and the second person is fired because of who they date, the only trait you took into account was sex.

          1. Exactly, motivated reasoning. Thanks.

            1. Motivated reasoning implies he wanted this outcome. I don’t know what he wanted and neither do you. What we do know is that he is correct. It is impossible to fire someone for being in a same sex relationship and not have it be “because of sex.”

              1. Motivated reasoning is that in 2020, he found it unreasonable to come to a decision that a someone could be fired for male sodomy…that’s what happened in Lawrence v. Texas as well, so using a purely textualist approach like a post-modernist, ignoring culture, history, tradition, and the original intent of those who wrote the law, he come up with the marvel that is Bostok. Hard to blame him, really. I’m hardly surprised.

                1. So Scalia was a post-modernist? Conservatives praised and elevated them because they did exactly that when it came to statutory interpretation.

                2. You seem to full-on believe that anyone – even a Federalist Society stalwart like Gorsuch – can reach a decision you don’t agree with honestly.

                  That’s like nearly solipsistic.

                  1. He can disagree, just not in any way that results in a benefit to undesirables.

                3. Textualism doesn’t care abotu culture, history, tradition, or original intent. It cares about what the text says.

          2. *have it not be

        2. The thing is, though, Bostock is dead on accurate as to the reason most anti-gay people are anti-gay: Gays don’t live up to gender expectations and gender roles. It’s the same order of creation argument I heard in church growing up: Men are expected to behave in a certain way, women in another. So regardless of what the authors of Title VII intended, I don’t see how you can plausibly argue that anti-gay prejudice isn’t about gender stereotypes. Gay men who receive are doing what women are supposed to be doing.

          1. Exactly, motivated reasoning. Thanks for agreeing with me.

            1. Motivated or not, it seems airtight to me. Do you have a challenge to the logic of it?

              1. A purely textual critique of Bostock reaching the opposite conclusion necessarily means that Title VII also doesn’t prevent employers from firing people interracial or (same racial!) relationships. I don’t think I’ve seen any critics of Bostock concede this yet.

                The other option requires use of historical and social context to determine Congress would never intend for Title VII to reach homosexuality ever. This ultimately requires reference to extraneous sources, something conservatives insisted was not only bad, but illegitimate.

              2. Yes, this thing called original intent.

                1. Which requires reference to materials outside the text of the statute.

                  1. And?

                    Originalism starts with the text itself, but nothing precludes (if we are trying to be an originalist) using history and context and tradition. You know, like Kav does for gun laws in order to rescue them or dispose of them as his motivated reasoning sees fit.

                    Frankly, it’s amusing the role reversal here. Living constitutionalists are wont to bring in outside material…but only if it’s to their advantage because it’s the shiny newness of some imagined reform they want.

                    1. And conservatives have insisted for years that textualism is literally the only legitimate method of interpreting statutes! That’s why they championed Gorsuch! But the minute it helps disfavored groups they abandon it. So you have to either 1) admit that Gorsuch is right or 2) admit that insisting pure textualism was the only legitimate and constitutional method of interpreting statutes was ridiculous the whole time.

                2. Yes, this thing called original intent.

                  But no originalists have relied on original intent in more than three decades. Originalism as an approach focuses on original public meaning, not original intent. (But note that original expected application is not the same as original public meaning.)

            2. I don’t think you know what motivated reasoning is. Motivated reasoning is choosing a conclusion and then using whatever reasoning you can to get there.

              That’s pretty obviously the opposite of what Gorsuch did in Bostock.

            3. Exactly, motivated reasoning.

              Those words mean the opposite of what you think they mean.

    4. “next wave of GOP court nominations ”
      Until the Orange Clown is dead and buried, the GOOP is not going to get any of those

      1. Why do you say that? If they nominate De Santis in 2024, he has a decent chance of winning.

        1. “Until the Orange Clown is dead and buried, the GOOP is not going to get any of those”

          Even if accurate, they don’t need any for the foreseeble future because of the ages involved. Absent sudden death or fatal illness, it will likely be 10 years until Thomas needs replacing.

  11. I don’t see the need to get bent out of shape. No need to hear a Constitutional challenge to a law that Congress may soon change. That’s all this means. And that is a very conservative approach, IMO.

    If Congress doesn’t change it, and SCOTUS takes this up later, then there will be time to read whatever opinions come out of the case and criticize them, if need be.

  12. Can’t let the Men’s Rights orgs steal the chance for progs to virtue signal over this.

  13. I’d like to hear an originalist argument for a national draft controlled by the federal government first. Then i’ll consider whether an originalist argument against the 1940 selective service act is even required.

    1. Its well understood that state militias had the right to draft people, and the constitution gives Congress the right to establish a standing army directly, which is the federalization of the state militias (or at least, was, since the days of the revolutionary way) so I mean, it pretty clearly stems from there.

      Imo, anyhow.

      1. There was no federal draft until the Civil War. Before then, States were expected to draft their militias, not the federal government. The original understanding never included a federal draft.

  14. That’s a really nice bicameralism-and-presentment you got there. It would be a shame if something happened to it.

    Did it bother you this much when Roberts did the exact same thing in Northwest Austin Municipal Utility District No. 1 v. Holder?

  15. WHoda thunk, a so called originalist is really just another fanatic using originalism as cover for his theology

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