SCOTUS justices legislate from the bench again
The issue was job discrimination:
The Supreme Court ruled 6-3 in a decision that protects LGBT people from job discrimination.
They decided “that an employer who fires a worker for being gay or transgender violates Title VII of the Civil Rights Act, which already protected people from sex discrimination.”…
Title of the Civil Rights Act of 1964 “prohibits employers from discriminating against workers, including in hiring and firing decisions, based on an employee’s sex.”
Gorsuch and Roberts voted for the majority opinion.
Well, I’m not a SCOTUS justice. Obviously. But I have an opinion, too, and it’s that this sort of thing is the job of the legislature. In 1964, there already were homosexuals out in the world of employment, and if the legislators had meant to include them they would have done so. Now, I don’t see that such legislation would even be hard to pass. But Congress has not yet passed it.
So SCOTUS took matters into its own hands, which it has done so many times before, and broadened the definition of a word to include phenomena it was not meant to include.
I’m with dissenter Kavanaugh on this:
Kavanaugh wrote that “the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.” He cited the Constitution’s separation of powers.
Seems blatantly obvious to anyone who knows even the rudiments of the Constitution.
However, I learned quite some time ago that people – and SCOTUS justices are people – will all too often cut corners to get what they want. In the process, they can and will use various rationalizations to justify what they do. Justices and lawyers are especially good at rationalizations, because their forte is argument. And so they take on powers they do not have, because they want certain results. The temptation is great, and it is often yielded to.
Roe v. Wade was a good example, one about which even many people who liked the result admitted that the method was faulty, and that SCOTUS had found a right where no such right existed. There are others, as well, and today’s decision falls squarely into that category.
[NOTE: I have not read the full decision, only some excerpts and commentary. This is based on what I’ve read.
I will add that I predict this ruling will be used not just to protect gay and transgender people from firings solely because of their orientation, but also that any such firings may end up presumed to be because of orientation, and it will often be up to the employer to prove that they weren’t. In that way, it may ultimately create a class of people especially protected from firings, period.]
[ADDENDUM: Alito agrees:
In a powerful dissent joined by Justice Clarence Thomas, Justice Samuel Alito condemned the ruling as “preposterous” and betraying “breathtaking” arrogance. He noted that Congress has tried and repeatedly failed to amend Title VII of the Civil Rights Act of 1964 in just this fashion and that no one interpreted the law this way until 2017. In this decision, as in Roe v. Wade (1973) and Obergefell v. Hodges (2015), the Supreme Court usurped the power of Congress by making “legislation.”
Exactly and precisely correct. And it should be correct whether you think such a law should be passed or not. But that’s not the way these things are going.
Alito added that the decision could ultimately end up affecting bathrooms and changing rooms, women’s sports, housing, religious employment, health care, freedom of speech, and constitutional claims. Please read the whole thing. Legislation might have addressed these issues, but the SCOTUS ruling leaves it all open. It’s so very much easier to legislate from the bench than from the legislature.]
It is undeniably true that, while leftists and progressives are almost never disappointed by the rulings of justices appointed by Democrats, conservatives are all too often dismayed by the opinions of those who were chosen by Republicans and whom they considered to be sound in judgement.
Rumors are flying in the conservative legal blogosphere that Chief Justice Roberts joined the majority so that he could assign Gorsuch the opportunity to write the opinion. Otherwise, it would have been a 5-4 opinion written by Ginsberg.
Why does that matter? Well, it appears that Gorsuch took pains in the majority opinion to ensure that this wouldn’t affect religious organizations. It’s unlikely that Ginsberg would have shown that kind of deference.
I don’t know how much credence to give to this theory, but it’s running pretty hot among the conservative lawyers that I follow on the Internet.
If true, this shows that the Chief Justice can be a pretty shrewd political player at SCOTUS. Which shouldn’t surprise any of us since the Obamacare decision.
“Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the center cannot hold;
Mere anarchy is loosed upon the world.”
W. B. Yeates “The Second Coming” on yet another issue the SCOTUS is completely unmoored.
Sports in public schools are dead for girls (aka what used to be known as young women). The alphabet people will not rest until all society embraces their agenda. Women and children most at risk, just a perversion of the phrase “Women and children first.” Kill the language then the all follows.
Well Captain Obvious speaking here, RBG must be replaced by someone that is a non-Roberts assuming President Trump wins reelection. That assumes there is still a reason for having a supreme court considering the possible reaction among the woke progressives to President Trump’s reelection.
Michael Towns:
Interesting.
j e:
But that is easy to explain.
The temptations of power reinforce the tendency of judicial liberals to take on too much power. The temptations of power reduce the tendency of judicial conservatives to resist taking on too much power.
Roe v. Wade was a good example, one about which even many people who liked the result admitted that the method was faulty,
Admissions of this sort were made, IIRC, by Archibald Cox, Michael Kinsley, and Stuart Taylor. My memory may be failing me, but I think Benno Schmidt may also have admitted as much. Not that many. The youngest of these four individuals was born in 1951. Our appellate courts are a scandal and our law faculties are a scandal. Sixty years ago, starboard writers referred to the 1930s as ‘the low, dishonest decade’. We’ve had six decades which make the low, dishonest decade of the 1930s look like an era dominated by Mr. Spock from Star Trek.
Will the employer be liable for employment discrimination, or for allowing a “hostile workplace,” if one of his employees uses the wrong pronoun to refer to one of the “non-binary” employees?
It’s a very lengthy opinion, which I have not read, but the above question leaped out at me.
Reality is being sundered. Either this section of the Civil Rights Act must be abolished or freedom inevitably dies, because this decision turns the US into a soft-Marxist Hell hole that Canada has devolved into.
Having read the Scalia cited rationale for this heinous ruling, this is a classic category error, in logic.
https://en.wikipedia.org/wiki/Category_mistake
Can I declare that the possible Civil War has suddenly become the necessary bloody kulture Kampf, too?
There is only one unprotected class…
invest in ovens… its only a matter of time…
and time is accelerating…
CapnRusty — of course! Just like Canada.
T J:
Thing is, most people aren’t for job discrimination against gay people, and so most people will probably say the ruling is good because they agree with the result. The more abstract ideas and threats are not well understood, I think.
And even someone like Ann Althouse, former law professor (con law, I believe), wrote this today:
See how it works?
I saw a comment on Facebook earlier from a libertarian to the effect that “This stuff was enabled because most conservatives were afraid to challenge the basis of the CIvil Rights Act.” I’m not entirely sure what he meant, and didn’t ask because I don’t know him. (I looked for the comment just now so I could quote it exactly, but can’t find it. Don’t know if it was removed or I’m just misremembering where I saw it.) But it made me stop and think. Could a concept as inherently imprecise as “discrimination” have been coded into any law that could not, in time, become this sort of universal solvent?
Well, maybe not necessarily. But the combination of those laws and the “progress” of our culture have certainly produced that effect.
Neo – of course. Only paying a blood filled price for tyranny stops the tyrant.
But no leaders care. “Shut up, bigot!” Must be met by my new T which reads “Proud Bigot.”
Mac – the Civil Rights Act eviscerated freedom of association, eg, all men’s clubs, etc.
And didn’t Senator Goldwater say that he could not vote for the Act because it did?! But the apologists said no, no, never…. He was right.
Mac:
He might be referring to Barry Goldwater’s original objection. Please see this.
Ah…yes, neo.
Ace reportedly quips “The Supreme Court just outlawed the concept of ‘women.’”
A commenter at Instapundit states the Silver Lining: more reason to leave public schools for private!
Not so fast, comes the reply:
“It won’t do any good. Private schools are public accommodations and will be subject to this as well unless they want to give up their nonprofit status and go full Bob Jones. Private schools are going to be brutalized by this as the army of trannies and angry gays descend on them. This likely the end of religious education as we know it. An actual Christian school is now effectively illegal.”
No, not a public accomodation. This is Civil Rights law regulation of employment, and it will quickly erase the many public/private differences in so far as selecting teachers matters.
And it matters most. Imposing conformity and cancelling different selection rules matter especially to religious schools.
I am glad to hear Gorsuch’s opinion maintains the religious exception (I haven’t read it). But this is not merely a religious issue. Any person can easily observe that people come in two sexes, and that the very few cases of birth defects producing ambiguous sexual characteristics don’t eliminate that basic fact. This is biology, not religion, and the Supreme Court has now ruled that biology is irrelevant to the law. And what does “sexual orientation” have to do with “sex?” I am female; what I might dream of doing about intimacy has nothing to do with biology and everything to do with behavior.
If Roberts and Gorsuch think they have successfully steered down the middle, they are mistaken. As with Roe v. Wade, they’ve just made things a lot worse.
And even someone like Ann Althouse, former law professor (con law, I believe), wrote this today, “I understand [Alito’s] argument, but right now, I am busy applauding.” –neo
Which is how Althouse handled gay marriage. She was for it and she knew how to get there via the equal protection clause of the 14th Amendment.
She simply ignored the obvious and reasonable argument that for thousands of years marriage has been defined as between a man and a woman. One doesn’t have to dig much deeper to understand that what makes marriage important and exceptional in society is biological children, therefore M/F parents.
As far as I’m concerned, if same-sex-marriage advocates wish to renegotiate the definition of marriage, have at it. But don’t pretend that marriage is an equal protection issue like sitting at a lunch counter. It’s much more fundamental than that.
Althouse is a bright, accomplished person and she deserves much credit for swimming against the leftist tide in academia by writing her blog. (I do wonder how she survived.) I must say, however, I was never that impressed with her when it came to rational argument.
Neo and T J: according to my memories, which are those of a then-16-year-old at the time the Act was being passed, there were two lines of objection, the freedom of association argument, and a more specific one which held that the interstate commerce clause of the constitution could not reasonably be stretched that far. I figured the Facebook guy was referring to one of those but didn’t know which.
My memory is definitely faulty re Goldwater because I was thinking his objection was to the interstate commerce logic. The free association argument is bolder, and I give him credit for that.
The fact that I was even aware at that age that those objections existed and were not crazy is owed to my high school civics teacher, whom I argued with at the time but later came to regard as a mentor in the principles of intellectual honesty.
To say I am disappointed with Gorsuch is a huge understatement: he caused a cultural disaster not only for the USA, but for all the western world.
How can an alleged conservative not realize the irreparable damage done? Where do they live? Does Gorsuch or Roberts believe that the left intends to respect the subtle nuances and distinctions of their long opinion?
Why can’t high society conservative intellectuals understand the cultural strategy of the left, after 60 years of bitter lessons?
“Why can’t high society conservative intellectuals understand the cultural strategy of the left, after 60 years of bitter lessons?”
I suspect it’s not a lack in understanding but rather a combination of willful blindness and desire to ‘compromise’ through accommodation, i.e. surrender. The collaborator always rationalizes their actions as ‘necessary’.
I’m spending too much time at Ace. First humour (yeah!), then the way forward…?
“It turns out that Lady Justice is not only blind, but retarded too.”
“I’m so old, I remember when a tranny made your car go, and there were only two genders.”
Obviously, the big reveal, of this a Big Fail is that screening for good, consistent conservative is not possible. Trump is 50%. Thus, we’ll get a right leaning court with only four more noms.
What else can be done to do better? Given the street fighting rules the Left has imposed upon us, we are stupid suckers to play nice anymore.
Why not the simply nominate the best thoughtful evangelical non-elite educated activist right-wing fire brand that can get confirmed?
As Trump says, what have you got to lose?
Chaser: Paolo on how immensely destructive this is? Yes, how could he be so blind?
Gay marriage was never about gay marriage
it was about the state having the power
to define relationships (or un-define them)
this is going to get interesting given there is no fixed definition of orientation
and human sexuality goes way beyond what was just ruled
way beyond… in for a penny in for a pound…
Roberts is once again too clever by half. Gorsuch, well this was certainly a disappointment, pray it isn’t a feature of his judicial character.
Maybe Gorsuch chose to be on the right side of history but also with the religious exception give a nod to conservatives. But note that the SCOTUS has previously made rulings that later were taken up by Congress.
In 1978, Congress added the Pregnancy Discrimination Act to the Civil Right Act. The change came after the Supreme Court ruled in 1976 that pregnancy discrimination was not “because of sex” and couldn’t be found illegal under the original Title VII language. https://theconversation.com/does-the-civil-rights-act-protect-lgbt-workers-the-supreme-court-is-about-to-decide-125290
So maybe in a couple years Congress will pass legislation. I see the point that the court should not legislate from the bench but when the ruling is 6 to 3 in what is a rather conservative court then it seems they are interpreting the words rather than making up laws. I’m with Althouse on this.
However, there are some other SCOTUS rulings coming soon that I think conservatives will like better. Again, this court is not liberal.
ArtfldgrUN (11:19): you are right, at least insofar as that was the effect, whether it was the plan or not. It really goes further than that. If, as Justice whats-his-name said in that decision back in the ’90s, we all have the right to define our own concept of existence, problems arise when one person or group’s definition is incompatible with another’s. In clashes of that sort, there has to be an authority who can decide what the *real* reality is. The Supreme Court has assumed that power for itself. For legal purposes, marriage is no longer an aspect of nature, so to speak, something which everyone saw as a kind of given reality, regulated by the state but not called into existence by it. Now it is literally whatever the state says it is. That was the true import of the Obergefell decision. And why should it stop with marriage?
Maybe Gorsuch chose to be on the right side of history but also with the religious exception give a nod to conservatives. –Montage
Warning! Warning! Presupposition alert!
The Progressive Church: secular, Christian, Jewish, Muslim?, etc.
Mortal gods and goddesses.
Twilight faith.
Pro-Choice, selective, opportunistic religion.
Liberal ideology.
to define relationships (or un-define them)
Relationships in the abstract form, or generally testing the waters for normalizing and leveraging sociopolitical constructs or congruences (“=”).
Oh, well. It’s a baby when she is wanted. It’s a fetus when she is unwanted, or deemed unworthy of life, an inconvenience, profitable, or technicians hope to socially distance themselves. So, now that we’re back on a progressive path, I suppose divergence was inevitable.
Thank you, Paolo, vey well said!
“This court is not liberal.” — montage
You sure coulda fooled me, this Lady Liberty massacre Monday. Three huge wipeouts, everyone prima facia wrong.
He continues: “ I see the point that the court should not legislate from the bench but when the ruling is 6 to 3 in what is a rather conservative court then it seems they are interpreting the words rather than making up laws.”
I get it. It’s just semantic distinctions, nothing to do with how young daughters use bathrooms or how and if they later compete directly against “women” in name only. No real world ethical conflicts involved…yet. Just soon, the all of a sudden.
Such a three-monkeys blind-deaf-and who am I kidding clusterf@ck.
I hate post-Constitutional post-America.
These Ruling Class schmucks broke her. Only persistent, hard Patriotic zeal can overcome the damage here and in the Western world. Ideas have consequences. Especially bad ones.
No one who uses “the right [or wrong] side of history” seriously gets intellectual respect from me.
Without necessarily defending the decision, it should be pointed out that Roberts and Gorsuch just saved the GOP from having to have an election-year debate on why it’s wrong to fire somebody for being black or Hispanic but perfectly okay to fire somebody for being gay or transgender.
Is that a debate people wanted to have?
Mike
Is that a debate people wanted to have?
Doesn’t bother me.
Isn’t mike being ironical? We don’t really need Civil Rights law abuse and onerous employment law confusion to get supercharge and more intensely debated. So much is already on the table. But now, it’s bigger, more complicated, and you made it much more messy! More important to completely overhaul.
We need a break from politics, wherever possible. Now, these horrible inside the Beltway hacks turned a terrible year, making it worse, more political, more fraught, more hateful and rancorous! Great.
Thanks, you fools! You just proved why whe need more radical reform of law and only an outsider like Trump can deliver us from worse evil.
Roberts clearly hates Trump! And you just f@@ked it up more, and just proved why you failures are gonna get more, much more Trump. Great job, soy boys! /sarc
Mr Bunge:
This is rich, defending Roberts and Gorsuch after many rants about the GOP. Maybe it was satire, are you trying out for the Babylon Bee?
.. and just like that, the left learns to be careful what they ask for…
https://babylonbee.com/news/trump-announces-he-is-gay-so-he-cannot-be-fired-from-the-presidency
The real reason for the decision —
https://babylonbee.com/news/scotus-hopes-no-one-realizes-they-lost-their-only-copy-of-the-constitution
If you’re criticising legal “creativity” re the definition of “sex,” how would you explain SCOTUS declaring that corporations are people in Citizens United?
Rick Cowan:
Very simple. Corporations have always been considered people in that sense. I learned as much in law school long before that case was ever decided. It was and still is standard not just in the US but in many countries around the world.
Very very different from a novel legal interpretation of the word “sex” that first come about in June of 2020 that contradicts every single previous meaning of the word “sex” both in the legal sense, and in the sense that the framers of the 1964 statute meant.
If you’re criticising legal “creativity” re the definition of “sex,” how would you explain SCOTUS declaring that corporations are people in Citizens United?
A corporation is a legal person. The whole point of issuing corporate charters is to provide a facility for commerce and industry by creating a legal person and limiting the liability of the shareholders to the value of their investment.
Does The New York Times Company have a right to publish? It most certainly does. What liberals want is for statutory law to allow corporate entities which support their side (the media and the public employee unions) to be allowed privileges and immunities, while the opposition is constrained. It’s one reason, among many others. that liberals can no longer be taken seriously.