“A victory for LGBT rights” – but a trashing of separation of powers
I’ve already written about yesterday’s SCOTUS decision in which the majority said that the 1964 Civil Rights Act prohibits employers from firing gay or transgender people because of those traits. But I want to add some further thoughts.
In Justice Alito’s dissent, he wrote this summary of what the Court was asked to do, and I think it states the situation quite well:
Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964.
This outcome of this case underlines larger principles. The first is one I’ve discussed many times before: content vs. process. People who are applauding the content, which is the expansion of LGBT rights, are ignoring the process. Alito is emphasizing that accomplishing this end through a tortured and unjustified re-interpretation of the 1964 bill is the wrong process, and a dangerous one at that. It appeals to emotion rather than cognition, and ignores the long-term negatives of achieving a goal this way. At least theoretically, either side could use arguments like this to circumvent the protections built into the Constitution, protections that involve the separation of powers.
The left is far less threatened by the precedent of overreach, because the left knows conservatives are ordinarily big on process and are less likely to do that. Conservatives tend to hold the line rather than invent rights that never existed before (such as liberals did in Roe).
For liberal judges to justify what they do is easy. For supposedly conservative judges who want to vote with the liberals it’s harder. But where there’s a will there’s a way (for example, Roberts is a master of the technique, Humpty Dumpty-esque in his ability to find his own meanings in words).
And if judges and SCOTUS justices can do it, why not everyone else? Journalists certainly have no trouble with it, so that the LA Times op-ed headline reads, “The Supreme Court victory for LGBTQ rights is also a triumph for the rule of law.” The first part of that title is correct, the second incorrect. The op-ed (but perhaps not the title?) was written by the dean of the UC Berkeley School of Law, and the reasoning is similar to that of the majority opinion. The vast majority of people reading that op-ed won’t even understand the conservative argument against it, much less agree with it.
The decision is certainly not a triumph for one of the most important principles of our Constitution, separation of powers, but that phrase doesn’t appear in the piece. The fact that the proper route to have achieved this same “victory for LGBT rights” is the Congressional one – an approach which has been tried but so far has been unsuccessful – is completely lost in the celebration over the outcome.
I think for conservatives the really hard thing about this decision is twofold. One is that the twists of reasoning that Gorsuch and Roberts had to go through to get to their desired result are unusually convoluted. The other is that although conservatives are used to Roberts voting with the liberals, so much so that he has almost become a swing vote, the defection of Gorsuch was unexpected.
Many people are puzzled and angered by the tendency of liberal judges never to defect from the liberal line while conservative judges often do. I’m really not puzzled by it, and I don’t ascribe to the usual conspiracy or “stab in the back” theories to explain it. I actually think it’s rather simple.
Justices are human beings, and human beings have a strong tendency to rationalize cutting corners to get where they want to go emotionally. Judges and SCOTUS justices are hardly above that urge, and what’s more, they are given enormous power. If an ordinarily or previously conservative judge has sympathy/empathy for a cause – let’s say it’s the right of a gay person not to be fired for being gay, which is a principle with which many if not most Americans would agree, as long as religious rights are preserved – then that judge just might try to find a rationale and/or rationalization for getting there. Judges are good, really really good, at argument. And so, in their haste to reach that goal, and succumbing to the temptation that is always present when a person is given great power, they sometimes find a reason to justify the result they want. They then tell themselves they’ve done the right thing. Their conservative colleagues who hold the line (Alito, Thomas, and Kavanaugh in this case) are seen by much of the public as the old meanies who are out to harm gay and trans people. That’s a difficult position to be in.
The poet Shelley famously wrote that “poets are the unacknowledged legislators of the world,” a sentiment I’ve never quote understood. I don’t think he meant it the way I would rephrase it, which is that emotions drive a great deal of what passes as reasoning. Judges are not poets. But judges have become the true “unacknowledged legislators of the world.”
[ADDENDUM: See also this for my take on the “Bill vs. Amy” argument presented here.]
To be opposed in any way to this ruling is, according to leftist dogma, to be an immoral person filled with hatred and intolerance. In similar fashion, to be opposed to the agenda of BLM (not the slogan, but the movement, which is an Afrocentric and radical Marxist attempt to transform fundamentally and entirely our beleaguered republic) is to be guilty of the worst of all contemporary sins. Unfortunately, most conservatives are seemingly incapable of understanding that this political game is structured so that they will always lose.
The poet Shelley famously wrote that “poets are the unacknowledged legislators of the world,” a sentiment I’ve never quite understood. –neo
Poets, also human beings, tend to overestimate their importance in the world. They are usually wrong, though not always. The effect of a good poem, song or novel can be powerful.
_________________________________
It is difficult
to get the news from poems
yet men die miserably every day
for lack
of what is found there.
–William Carlos Williams, “Asphodel, That Greeny Flower”
“People who are applauding the content, which is the expansion of LGBT rights, are ignoring the process. Alito is emphasizing that accomplishing this end through a tortured and unjustified re-interpretation of the 1964 bill is the wrong process, and a dangerous one at that. It appeals to emotion rather than cognition….”
After long experience l am convinced that most people are incapable of understanding this distinction. Many of them, including most leftists today, have a strong emotional investment in ignoring it, but even if they grasp it they don’t care. The only thing they see is that the outcome was or was not to their liking. And if you explain that it does not accord with the Constitution, or some other body of law, they just look blank. If the Supreme Court were to decree that every person in the U.S. be given a trophy, any argument would be about whether everybody ought to have a trophy, not whether the court had the authority to do it.
Alito is so right, on this and all the rest of his dissent.
Mac:
I am in complete agreement with you. Emotion trumps reason for most people. That seems to be human nature – and, as the Katherine Hepburn character Rose Sayer says to Charlie Alnut in “The African Queen” after he excuses himself by saying his behavior is human nature: “Nature, Mr. Allnut, is what we are put in this world to rise above.” It takes education in order to put logic in place of emotion, for most people anyway (people differ in their emotion/logic balance).
The thing is – those in charge need to use logic and set an example, as well. And when that falls away, we are in for very bad things.
It generally isn’t a deficit of logic, but a deficit of detachment and integrity.
Art Deco:
Aren’t those necessary for logic?
I’d say it’s all of the above, for judges and lawyers. Emotion certainly trumps logic most of the time for most people, and it seems that “integrity” for left-wing judges and lawyers means advancing the cause, period. For the masses, though–in which I include most of today’s putatively educated–it’s not so much those as that they don’t even see that there is any occasion for application of logic, detachment, or integrity. They simply would not see the difference between the Supreme Court saying everyone must have a trophy and Congress passing a law saying that everyone must have a trophy, distribution to be managed by the executive branch. Either way, we all get a trophy, and we all want a trophy, so what’s the difference?
If you try to make the case that the difference is not only real but at the very foundation of our government, you just get a blank look, or an accusation: “You don’t think I should have a trophy! You are a mean nasty heartless person.” If the speaker is a member of a victim group, of course, there’s lots more–you’re not just mean, you’re a species of criminal.
And that’s where the great exemplar of “we don’t care about the process, we just want the result” comes into the picture: the lynch mob.
Neo: Have you seen this article on realclearpolitics.com, the part with the examples of Bill and Amy, etc.?
https://www.realclearpolitics.com/articles/2020/06/15/why_roberts_gorsuch_voted_with_liberals_on_lgbt_case_143456.html?fbclid=IwAR1vuzvPSC1rgqeXLAHVSBOxVsvqE2mCvJVX4wsvP_dSX8Dtdbe6rajiafI
I’m still trying to work out whether it’s logically valid or just sophistry.
Mac:
I agree with you. When I mention the importance of process to friends, they don’t seem to know or to understand what I’m talking about or why anyone would consider such a thing important. And these are not unintelligent or uneducated people.
But lawyers and judges know. Liberal ones either ignore it or, more commonly, rationalize getting to the place they want to get.
Watt:
I see it as sophistry.
The word “sex” has a clear meaning, at least up until now: man or woman in the biological sense. So transgenders are not covered. That’s the first point. If the wording of the act were to be changed to include transgendered people, that would cover it and there would be no problem.
The second point regarding the employment of homosexuals is that the Bill vs. Amy distinction in the hypothetical is not based on sex either. If some employer is intent on firing a person involved in same sex couples, that employer would fire either a man OR a woman involved in a same sex relationship. In other words, a Bill who is involved with a man, and an Amy involved with a woman, would be treated the same (unfairly, IMHO, but the same). And a heterosexual man and a heterosexual woman would be treated alike as well. The difference arises from the nature of the relationship rather than merely the sex of the employed person.
Until this case, these things were understood even by activists who pushed bills to change the wording. They knew that was the proper remedy, and they knew what the words in the act meant – not just in 1964, but on the face of it.
When the court rules on something that hasn’t really worked its way through society so that an accomodation can be found, the activists will use that to push through even more. Think if only first-semester abortions were allowed by most states, wouldn’t most people have just learned to live with it. Instead, it became one of the biggest issues for the Dems. Or if gay legal partnerships had been allowed, would we have had Anderson Cooper going on about his baby born to a surrogate after he had split up with his partner. Most people don’t have a problem with Ric Grenell because his homosexuality is not all he talks about.
The same is probably true of transexuals. Most people would quietly get along with a quiet Bruce Jenner living next door, but now we have to deal with teenaged social media fads and crazy women who want to show how cool they are by putting their kids on puberty blockers. The lawsuits are going to be coming like crazy after this court ruling. It’s not just that the court didn’t decide on the meaning of sex in 64, it’s that the society doesn’t agree on it now.
Neo: Thanks. My thoughts were inchoate, but I think I was getting to the point you are making in the second paragraph of your response.
“When I mention the importance of process to friends, they don’t seem to know or to understand what I’m talking about or why anyone would consider such a thing important. And these are not unintelligent or uneducated people.
But lawyers and judges know.”
Indeed and because the S.C. justices not only know but are charged with upholding the very fundamentals of the Constitution, they have revealed their utter unfitness for their office. Of the 9 justices, 6 are unfit.
And tragically, they are a direct reflection of the majority within our society. Once again it is demonstrated that humanity is, in the aggregate incapable of wise self-governance. No wonder corruption and tyranny is the historical norm.
The Supreme Court of united State of America unaccepted and fast action raises an eyebrow & very surprising.
With all the chaos, the demonstrations and killings that spread across US cites, demanding human quality and respect for human race which The Supreme Court should have words, The Supreme Court kept silent till now?
FB:
Your understanding of the United States of America shows itself again. Bless you heart.
If you read the SCOTUS opinions at Scotusblog you will find that Congress had the opportunity to amend the Civil Rights Act Title VII about eight times,IIRC, and to add these new LGBTQ rights, if it so desired. I.e. sundry proposed legislation came up since 1965 that invited changes and amendments to this Act, but Congress did not act. So, unless we think that Congress forgot what was in the Act or was lazy or stupid, we have to conclude that Congress did not intend —at these earlier times—to have the added LGBTQ rights in the law. Maybe Congress’s imagination was better than the Court? As Scalia said: The Court’s job is to find how an ordinary person at the time of passage of the bill, using the plain meaning of the text, would understand its meaning.
There could be some good reasons to allow an employer to sometimes fire a trans person. Supposing the T person came to work every week identifying as a different sex. One week she sported a huge colorful red boa scarf and a huge sombrero hat. The next he came as a Hells Angel in leathers and chains.
Such behavior could easily cause such distraction in the workplace that productivity would suffer. It could easily be a termination-of-work problem if the employee refused to change.
From not just this decision but others as well, Gorsuch’s brand of textualism reminds me of the wish-granting monkey’s paw in the story — if you don’t choose your words carefully, they will have unforeseen and ironic consequences. It’s also known as “the literal Genie” trope in screenwriting. “I wish I never had to worry about money again,” then, blam, you’re crushed by a boulder.
Anybody who has spent time in a courtroom will tell you that judges do what they want to do, then figure out the legal justification — sometimes strong, sometimes weak, sometimes just gibberish — for doing it. People put on those black robes, they have absolute power, and we all know what that does.
The Constitution of the New United States will provide that any ultra vires decision of the Supreme Court can be overridden by a 2/3rds vote of Congress and signature of the President.
“Two things are infinite. The universe and human stupidity and I am not sure about the universe.”
~ Albert Einstein
social justice, or tikkun olam,
Richard Saunders,
People put on those black robes, they have absolute power, and we all know what that does.
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