November 30, 2020 / by 

 

What Would John Dewey Say About Court Packing?

In footnote 2 to the first post in this series, I noted that the American philosopher John Dewey rejects what we now call Social Contract Theory. I was taught this theory in school as an explanation of the rationality of the State, and it was reinforced when I read John Rawls’ A Theory Of Justice. Once again I find myself unlearning a principle I never thought to question.

When I say I was taught Social Contract Theory in school I overstate. My teachers in law school occasionally mentioned it without really arguing it out or describing alternatives. I’m certainly no expert on it. This article in the Stanford Encyclopedia of Philosophy gives an overly detailed discussion of contemporary views of the theory. Here’s the article I linked in the previous post from the Internet Encyclopedia of Philosophy which is more readable. As I noted, the social contract approach is dominant in political thinking.

Dewey flatly rejects this idea. I linked to one source for this in the first post. He discusses it in passing in his book Experience and Nature (1925). [1] Dewey discusses the nature of the mind of the individual, and illustrates it with a discussion of what he calls “social compact” theory. [2] Dewey thinks that human beings have changed as our understanding of nature and human nature have grown and changed.

The conception of the individual changed completely. No longer was the individual something complete, perfect, finished, an organized whole of parts united by the impress of a comprehensive form. What was prized as individuality was now something moving, changing, discrete, and above all initiating instead of final. P, 271 (references are to the Kindle Edition.)

He takes up what he calls the social compact, as a way of illustrating this change. He describes it this way:

The [social compact theory] declared that [the state] existed by means of agreements between individuals who willed the institution of civil order. P. 273.

Dewey says that the originators of this idea might have thought that their forms of government came about through war, accidents, personal interests and other natural occurrences, so naturally they were corrupt and warlike. A new arrangement brought about by actual agreements and enforceable covenants would be better. Dewey agrees with one aspect of social contract theory.

… [S]ocial institutions as they exist can be bettered only through the deliberate interventions of those who free their minds from the standards of the order which obtains. The underlying fact was the perception of the possibility of a change, a change for the better, in social organization. P. 274.

Dewey says that once people became aware of this, they began to change social conditions,

Social conditions were altered so that there were both need and opportunity for inventive and planning activities, initiated by innovating thought, and carried to conclusion only as the initiating mind secured the sympathetic assent of other individuals. P. 274-5

He is careful to point out that new innovative ideas don’t become reified until other individual minds come to agreement.

The wrong part of social contract theory is that once people established a form of government, the newly created form became fixed and immutable. The wrong idea is that there is only one right form, and that once it is in place, we don’t have to think about it again. Dewey thinks this idea is derived directly from social compact theory. It makes it difficult to change as time reveals new needs, new problems. It becomes a barrier to change. [3[

What does this have to do with court-packing?

Corey Robin says that the conservative movement has developed a three-legged stool to gain and hold power. He says they rely on the Electoral College, the Senate, and the courts, especially SCOTUS. Each of these is tilts grossly toward the power of the minority. They exploit these ruthlessly to control the exercise of government power. Robin calls this Gonzo Constitutionalism. That seems right.

It isn’t just the Constitution, though. Over the past centuries we have evolved a set of institutions and general theories of government to flesh out Constitutional provisions. Some are simply rules of varying degrees of formality, such as Blue Slips and the filibuster, or at the state level, the convention that redistricting is done only once every ten years following the census. Others are statutory, like the SEC and the Centers for Disease Control. Still others are the result of SCOTUS decisions, like the currently disfavored idea of substantive due process. [4] Robins says that conservatives exploit these, increasing their scope or destroying them as gives them more power.

Robin concludes that the Democrats will have to recognize that the institutions and norms that got us this far are failing because the conservatives have refused to accept them, and to work within their limits. Dewey would add that the point of government is to solve collective problems faced by the public, such as the climate crisis, the pandemic, the ugly disparities in wealth, income and life chances, and the failure to hold elites accountable for their actions. Conservatives deny that these as problems and do not offer any solutions.

Robin says that if the Democrats ever take control of government, they will have to be just as relentless in replacing failed norms as the conservatives are in destroying them. The Democrats will have to create new norms, new institutions, and new ways of understanding our democracy, all of which they will have to enforce remorselessly.

I’ll just add that if Robin’s solution includes court-packing, Dewey would approve. And so would I.

=======
[1] This book is difficult even by Dewey’s standards. It’s a sort of Pragmatist metaphysics. I have hardly scratched the surface, but this part makes sense on its own.

[2] To put this in context, I’m reading from Chapter 6 titled Nature, Mind and The Subject . Dewey describes the views of Plato and Aristotle concerning the nature of the individual. He concludes that they did not look at psychological states. They say that the objects in the world and the patterns they create, and the patterns humans need to recreate them, all are given by nature. The mind of the individual is an observer and learner of those objects and patterns. The artisan follows those patterns to create objects. That is as true of the maker of clay pots as it is of the philosopher looking at human society. I think this means the self is not a subject as we use the term, not exactly a self-driven agent, but simply another kind of object in the world. I could easily be wrong.

He then turns to more modern ideas of the individual.

The idea that generalization, purposes, etc., are individual mental processes did not originate until experience had registered such a change that the functions of individualized mind were productive of objective achievements and hence capable of external observation. P. 270-1, Kindle Edition.

This is a tipping point in our development as a species.

[3] Dewey writes: “The fact that the intent of the perception was veiled and distorted by the myth of an aboriginal single and one-for-all decisive meeting of wills is instructive as an aberration…”. P. 274. So much for John Rawls’ Original Position. Dewey accepted the basic idea of evolution: that there is no purpose to natural evolution, no drive to some perfect state. Purpose comes from people.

[4] Another example is Marbury v. Madison in which the slave-holder John Marshall decided that SCOTUS was the final arbiter of questions of constitutionality. That hasn’t worked out well especially in the protection of our democracy. Consider the absurd holdings in Shelby County v. Holder and Citizens United v. FEC. For serious criticism see The Case Against The Supreme Court by Erwin Chemerinsky.


SCOTUS Nomination: Coney Barrett’s Beeswax and Goose Quills

Nebraska’s Senator Ben Sasse did this country a solid for once during the third day of Senate Judiciary Committee hearings on Trump’s nominee to the Supreme Court, Amy Coney Barrett.

Sasse asked Coney Barrett, “What are the five freedoms of the First Amendment?”

To which Barrett replied, “Speech, religion, press, assembly… I don’t know — what am I missing?”

Good freaking gravy. If you are a nominee to the Supreme Court, you should not only know the Constitution backwards and forwards, you should understand the history and rationale behind the Constitution and every amendment.

If you are an originalist, you should be able to explain why the amendments were added to the original Constitution.

Coney Barrett is a hack and not worthy of a lifetime appointment to her current federal judgeship let alone the highest court in this country.

She also needs to drop the pretense she’s an originalist in any sense of the word.

Personally, I think she and any other so-called originalist should get back to their roots and walk the talk. Originalists shouldn’t obscure their bigotry against the idea of a living document which reflects the changes to our society. They should demonstrate they actually live their regressivity, give up all the modernity which requires a similarly contemporary understanding of citizens’ rights.

I wish a senator would have asked Coney Barrett if she believes in magic and if she would allow magic to shape her understanding of the Constitution and amendments, to mold the opinions she’ll have as a jurist.

Why magic?

Science fiction author Arthur C. Clarke once said, “Any sufficiently advanced technology is indistinguishable from magic.”

To an original U.S. citizen, a founder and framer of the Constitution, many of the feature of our modern world would look like magic.

Imagine what it would look like to them to push a button to illuminate a room without lighting a fire or casting a spark first, without suffering the guttering stench of a weak tallow candle, made from grass-fed, open-range beef fat slowly rendered in cast iron pots over open hearth fire.

Imagine what it would look like to a colonist to walk into a store filled with clothing made of synthetic fibers created from extracted minerals, in brilliant colors and decorated with all manner of hardware, instead of wearing linen shirts made from flax grown on their own farms and carefully wintered, broken down, carded into fibers before being woven on a loom in front of their cold winter evening fires by the woman of the house. What must the shiny plastic buttons and smoothly operating zippers look like in contrast to their hand-crafted buttons on their weskit and coat made from their slaughtered cattle’s horns.

Imagine their pleasure donning smoothly knit socks of uniform fit and finish, instead of wearing stockings they knit themselves from wool collected from their own sheep, let alone what it must feel like to wear cotton-knit smallwear to prevent chafing of their parts.

Imagine what the original framers felt and meant when they sat down in their linen shirts and woolen socks and hand-cobbled boots to write out their drafts of the Bill of Rights and the subsequent early amendments using well-mended quill pens, harvested from hand-fed, free-range geese like the framers would have dined on, their feathers used for stuffing their pillows.

What would it have meant to insist the government shall restrain itself from making any “law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Expressing one’s self in the public square would have required literal shoe leather or an equine to gain access to that space, or the still-rare education to craft a cogent sentence on parchment or paper which were expensive at the time. So expensive that waste was often reused as lining in footwear or clothing as insulation. The use of a printing press may have made speech more uniformly available and less expensive but who had a press and could use one let alone the money to buy access to one? Speech was not without a significant personal investment.

The same for religion – it is, after all, one of the primary motivations for some of this country’s earliest colonists, to be able to practice religion without persecution by the British Crown or others. Religion like other forms of speech required similar personal investment: access to the space, ability to print, share, and read Bibles and hymnals. Refraining from religion likewise could require investment to leave it behind.

Likewise for petitioning the government. It would require the same personal investment that speech and the practice of religion or its abstention would have demanded from the colonists, with the additional risk of punishment for having the temerity to make demands of an organization as powerful as a monarch. Punishment like being chained and put into the stocks, left out in the elements wearing none of the modern protections we have against sun, wind, and precipitation. Or worse, risk being charged with seditious conspiracy to be sentence to hanging followed by drawing and quartering at the gibbet before the masses.

An originalist like Amy Coney Barrett, wearing her pink polyester attire and chemical-laden makeup to appear on video, is lying to themselves and us when they cannot see that the society which accesses her nomination hearing across thousands of miles and in asynchronous time and place is not an originalist people, its understanding adapted to new information acquired over the last couple hundred years.

Our lives are filled with what the framers of the Constitution would have thought magic.

Originalists are not up to the task of deciding issues of contemporary law using criteria shaped by goose quills and beeswax seals.

In Coney Barrett’s case, she exercises a bias in her personal life for a single kind of magic – the belief in an invisible creator deity with three avatars. We can see it in her profile, in her experience as a professor at Notre Dame University. But we’re not able to quiz her about that particular believe in magic because her faith in it is protected by the very first amendment to the Constitution, about which she is so ignorant.

She’s so far appeared not only ignorant of the original Constitution and First Amendment, but unwilling to commit to seeing contemporary American life relies on far more kinds of magic than the framers ever imagined.

She’s not even willing to acknowledge scientific consensus on climate change, though the rigorous research behind it is no different than biomedical research into cancer and COVID-19. The framers had little to no understanding at all about epidemiology and disease; our society has changed its awareness with research and review, extending our human lives by 30-40 years. To the founding fathers this would have seemed incredible but it’s our expected modern reality.

When she clings to originalism as an excuse for her decisions past and future, Coney Barrett tells us she’s not up to  America’s present and future demands. Save for her narrow one-god-three-avatar belief, she’s a bigot against whatever perceptions, knowledge, and wisdom shape a sufficiently advanced society indistinguishable from a place of magic.

Americans deserve and need better than Coney Barrett as a federal judge or a Supreme Court justice.


SCOTUS Nomination: Amy Coney Barrett’s 2nd Day Before Senate Judiciary Committee

That’s a pretty dull head, isn’t it, for what’s at stake, for the price Americans have paid for the GOP’s SCOTUS nominee?

Chris Hayes said it best:

The GOP Senate chose roll over and kiss Trump’s cyanotic slack ass instead of fighting the White House to protect Americans so that it would get the SCOTUS candidate it wanted should a seat open. Now through the GOP’s illegitimate processes they’re going to try to steal another SCOTUS seat for Amy Coney Barrett, who is far more openly bigoted than the other conservative justices.

When Sam Alito was nominated he was quizzed firmly about his association with Concerned Alumni of Princeton, during which he disavowed the conservative group’s racist and sexist perspective. He managed to skate by without the extent of his biases being fully revealed during his nomination hearings.

Coney Barrett, however, not only has a much more open history of bigotry, but she’s tried to hide it. She didn’t disclose that as a professor at Notre Dame University she gave both a lecture and a seminar in 2013 on Roe v. Wade to anti-abortion student groups.

It hasn’t helped matters that Notre Dame has eliminated any video or other digital documentation of her lecture and seminar. It doesn’t appear Coney Barrett has made any effort to recover this material, either, to bolster her own case.

She also failed to disclose her support for a 2006 newspaper ad which called for Roe v. Wade to be overturned. Her name appeared as a co-signer on a two-page anti-abortion ad, which should have been included in the disclosure forms submitted to the Senate Judiciary Committee with her nomination to SCOTUS.

She may also have been hiding the fact she failed to make this same disclosure in 2017 when she was nominated as a federal judge.

Coney Barrett has also been a paid speaker five times for an organization designated as a hate group by the Southern Poverty Law Center. The Alliance Defending Freedom seeks the recriminalization of consensual sex between same-sex partners; ADF also wants to deny transgender persons the same civil rights cis-gender persons possess.

Amy Coney Barrett is a bigot, and openly so.

Her experience as a federal employee doesn’t give us a different impression; her effort to obscure her past is ineffectual as well as deceitful.

I won’t even get into her sketchiness about privacy rights here. That she refused in 2017 to take a firm position acknowledging them suggests she has no problem with the government getting into your bedroom and anything else you consider sacrosanct.

Nor will I go very far into her absurdist believe in originalism.

Is she okay with slavery? The denial of the right to vote to women and Blacks? Does she even believe she has the right to be employed by the federal government because she’s a woman and a mother?

Her personal relationship with religious organization People of Praise and its gendered roles suggests she doesn’t subscribe to equal rights for women after all. Senators may not be able to ask her about her religious beliefs even if she openly embraces prayer as part of her professional life, but her actions and commitments answer the questions they can’t ask.

Coney Barrett is a far-right conservative who doesn’t believe all Americans have equal rights under the law, evidence of which her experience and life choices provide.

She also doesn’t believe the American public is entitled to openness and transparency because she’s withheld information not once but twice.

It’s not reasonable to expect the public to trust Coney Barrett to recuse herself from any case before SCOTUS related to Trump, especially the election and his finances because of her obvious political leanings and her lack of trustworthiness.

~ ~ ~

The Democratic congressional caucus should have done a better job of fighting this nomination before it even reached a Senate Judiciary Committee hearing. Adam Jentleson wrote them a roadmap published in The New York Times and it’s as if they never saw it.

I don’t know why the Democratic caucus didn’t pursue the impeachment, conviction, and removal of AG Bill Barr immediately as it would have precedent over the nomination hearings.

In July, Barr testified before the House Judiciary Committee that he didn’t know about threats to Michigan’s governor; he didn’t know much about the armed protests in state capitols on April 30. He either lied about this or he failed to do his job, as the arrests of 13 domestic terrorists — two of whom participated in the April 30 armed protest in Lansing, Michigan — demonstrated there were credible threats meriting federal charges. Apart from slowing down the Senate, there’s ample reason to do this right now before another threat becomes more than chatter and field training.

Whatever wrench is available, Democrats need to throw it in the works to slow down or halt Amy Coney Barrett’s nomination. She isn’t worthy of the empty seat on the Supreme Court.


Happy ‘PRESIDENTIAL HARASSMENT’ Day! [UPDATE-5]

[NB: Updates at bottom of post. /~Rayne]

We’ve been waiting too long for this day.

Not this day:

But this day:

UPDATE-1 — 11:05 a.m. ET —

A reminder not to get too excited about tax documents being produced before November:

And Rep. Ted Lieu continues to press for expanded inherent contempt powers:

UPDATE-2 — 11:43 a.m. ET —

Could Trump be indicted by Vance’s office before November?

Fingers crossed.

UPDATE-3 — 11:58 a.m. ET —

Yup…and a specific reason why we can’t expect a speedy resolution.

This will have to work its way through the system.

UPDATE-4 — 2:08 p.m. ET —

Rep. Adam Schiff’s take on SCOTUS’ decision:

Another important SCOTUS decision today, which should not be lost to the hubbub over Trump v. Vance:

In a 5-4 decision, the Muscogee tribe of eastern Oklahoma has won in McGirt v. Oklahoma. Justice Gorsuch wrote the majority opinion.

JUSTICE GORSUCH delivered the opinion of the Court.
On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. In exchange for ceding “all their land, East of the Mississippi river,” the U. S. government agreed by treaty that “[t]he Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians.” Treaty With the Creeks, Arts. I, XIV, Mar. 24, 1832, 7 Stat. 366, 368 (1832 Treaty). Both parties settled on boundary lines for a new and “permanent home to the whole Creek nation,” located in what is now Oklahoma. Treaty With the Creeks, preamble, Feb. 14, 1833, 7 Stat.418 (1833 Treaty). The government further promised that “[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.” 1832 Treaty, Art. XIV, 7 Stat. 368.
Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.

The opinion is filled with remarkable little bites which have pointed teeth, like the first sentence in Sect. II:

Start with what should be obvious: Congress established a reservation for the Creeks. In a series of treaties, Congress not only “solemnly guarantied” the land but also “establish[ed] boundary lines which will secure a country and permanent home to the whole Creek Nation of Indians.” 1832 Treaty, Art. XIV, 7 Stat. 368; 1833 Treaty, preamble, 7 Stat. 418. …

Right there, in the text of the law, even.

And then this closing in the last graf of the majority opinion — whew, this seems like a message to another audience altogether:

…If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.

This decision will likely result in a few death sentences being overturned, according to Sister Helen Prejean.

One might wonder at the impact on the ongoing threat to the Mashpee Reservation.

 
UPDATE-5 —  by Ed Walker, a very long comment

SCOTUS handed down two decisions in cases involving Trump’s tax returns: Trump v. Mazars USA, LLP, the House subpoena case, an Trump v. Vance, the New York State subpoena case. Here are some preliminary thoughts.

1. In both cases SCOTUS is forced to pretend that Trump is a normal President. This is from Vance, discussing Clinton v. Jones, the case about Clinton’s sex life.

The Court recognized that Presidents constantly face myriad demands on their attention, “some private, some political, and some as a result of official duty.” Id., at 705, n. 40. But, the Court concluded, “[w]hile such distractions may be vexing to those subjected to them, they do not ordinarily implicate constitutional . . . concerns.” Ibid.

No one thinks Trump is normal. His only time constraint is his TV schedule, and his need to spend quality time with his friends at Fox News. So, when reading these cases we have to remember that they apply to normal presidents of both parties, mostly, at least we hope so.

2. In Mazars, Roberts says that Congress can only issue subpoenas in pursuit of information needed for legislative purposes. Therefore, the only issue is whether this subpoena exceeds the authority of the House, considering that it makes demands on a different branch of government. SCOTUS makes up some considerations for balancing the need for information with the demands on the President. This makes sense in the normal run of things. As the Courts says, prior demands have been resolved without the courts. However a normal President doesn’t hide his tax returns, and doesn’t have significant business dealings with traditional enemies of the US.

This case exposes the Democrats as failures. They had information suggesting that Trump or his businesses or both had extensive business dealings with Russians, including some connected to Putin, and had reason to suspect that those relationships affected his official actions towards Russia. Two obvious points: Trump ignored and denied Russian meddling in US elections; and Mike Flynn explicit kowtowed to Putin over sanctions. Why wasn’t this the explicit rationale for the subpoena for his transactions with Deutsche Bank, which is thought to be the vehicle for those transactions. The grounds would be impeachment, which is a power solely reserved for Congress, and one in which the role of SCOTUS would be severely reduced.

This was a specific decision by Speaker Pelosi and the rest of the House Leadership Gerontocracy. Pelosi resisted demands for an investigation of the lies of the Bush/Cheney administration that led to the sickening attack on Iraq. She resisted any effort at serious investigation of Trump, and had to be forced into investigating the extortion of Ukraine.

3. The underlying problem in Mazars is the weakness of Congress. Trump and his contemptible lackeys refuse to cooperate with Congress. Bill Barr thinks the President has absolute authority, and can ignore Congress.

The Constitution provides that each house sets its own rules. Each house could easily set up its own rules about subpoenas and enforcement of subpoenas. One possibility would be that an administrative official who refused to comply with a subpoena could be held in contempt, and then that person and all underlings would lose all authority to act under any law or regulation.

4. The delay issue in Vance is similar. We’ve wasted a year on arguments that had no possibility of success except in the minds of Presidential absolutists. Now we can expect Trump to move to quash the Vance subpoena in New York state courts, starting the whole thing over. Neal Katyal disagrees; he thinks the matter can be settled quickly in New York courts. We’ll see.

5. Trump has damaged America and Americans while this case stumbled along. One obvious remedy is a law that Congressional subpoenas are deemed enforceable by Congress unless there is a final court decision within a short period, say two months. Current court rules ignore the speed with which legal matters can be handled with the internet. Legal research is easier and quicker, filing is trivial, and video-conferencing solves all travel and scheduling problems. The rest of us have had to speed up. So should Courts.


Three Things: SCOTUS on LGBTQ+ Discrimination, Qualified Immunity, Gun Rights

Very big SCOTUS day today. Huge — and that’s in spite of the court declining to hear cases on multiple issues.

~ 3 ~

In BOSTOCK v. CLAYTON COUNTY, GEORGIA and two other cases, the Supreme Court ruled in 6-3 decision that firing an employee for being gay or transgender violates the Title VII of the Civil Rights Act of 1964.

Title VII (42 USC § 2000e-2 [Section 703]) reads,

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;

Dissenters were Justices Kavanaugh, Thomas, and Alito; Alito filed a dissenting opinion which Thomas joined. Kavanaugh also filed a dissenting opinion.

Overview of the three cases from Human Rights Watch:

In R.G. & G.R. HARRIS FUNERAL HOMES v. EEOC and AIMEE STEPHENS, Aimee Stephens worked as a funeral director at R.G. & G.R. Harris Funeral Homes. When she informed the funeral home’s owner that she is transgender and planned to come to work as the woman she is, the business owner fired her, saying it would be “unacceptable” for her to appear and behave as a woman. The Sixth Circuit Court of Appeals ruled in March 2018 that when the funeral home fired her for being transgender and departing from sex stereotypes, it violated Title VII, the federal law prohibiting sex discrimination in employment.

In ALTITUDE EXPRESS INC. v. ZARDA, Donald Zarda, a skydiving instructor, was fired from his job because of his sexual orientation. A federal trial court rejected his discrimination claim, saying that the Civil Rights Act does not protect him from losing his job because of his sexual orientation. In February 2018, the full Second Circuit Court of Appeals ruled that discrimination based on sexual orientation is a form of discrimination based on sex that is prohibited under Title VII. The court recognized that when a lesbian, gay or bisexual person is treated differently because of discomfort or disapproval that they are attracted to people of the same sex, that’s discrimination based on sex.

In BOSTOCK v. CLAYTON COUNTY, Gerald Lynn Bostock was fired from his job as a county child welfare services coordinator when his employer learned he is gay. In May 2018, the Eleventh Circuit Court of Appeals refused to reconsider a 1979 decision wrongly excluding sexual orientation discrimination from coverage under Title VII’s ban on sex discrimination and denied his appeal.

The dissent weighed in at more than 140 pages out of the entire 177 page syllabus and decision handed down by SCOTUS today.

The first sentence of the dissent:

There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.

Right-wing ideologues are in a furor over Justice Gorsuch’s delivery of the opinion. They must have had absolute faith in Gorsuch to be so incredibly outraged that his interpretation didn’t sustain bigotry. He wrote,

An employer who fired an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids. Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. Only the written word is the law, and all persons are entitled to its benefit.

Today’s decision doesn’t end all discrimination against LGBTQ+ persons, only employers defined by Title VII. There is still a need for more legislation to ensure all persons in this country may rely on the same rights in housing, credit, property ownership and more. The House passed the Equality Act in May 2019 to address these shortcomings; the bill is now languishing on Senate Majority Leader Mitch McConnell’s desk in spite of support for the bill from 70 percent of Americans.

Steve Silberman noted a trait shared by two of the three dissenting jurists:

One of the most passionately angry voices today:

“Bungled textualism.” ~chuckling~

~ 2 ~

The SCOTUS declined to hear cases seeking reexamination of the doctrine of “qualified immunity.” Thomas was the lone jurist who wanted to hear cases; in a six-page dissent he wrote, “qualified immunity doctrine appears to stray from the statutory text.”

There will be greater pressure on lawmakers to address qualified immunity in legislation.

Opinion piece about qualified immunity:

Rep. Ayana Pressley on qualified immunity:

~ 1 ~

The SCOTUS declined to hear multiple Second Amendment cases after it avoided addressing New York City’s regulation of guns back in April because the city repeal of the restriction render the case moot.

Justices Thomas and Kavanaugh dissented, wanting to hear a case related to New Jersey’s regulation of concealed carry guns.

~ 0 ~

There’s actually four things today — SCOTUS also declined to hear the Trump administration’s petition regarding California’s SB 54 which prevents the state’s law enforcement resources from being deployed to aid federal immigration enforcement. Alito and Thomas dissented, wanting to take up the matter; surprisingly, Kavanaugh voted with Roberts and Gorsuch to decline.

We are still waiting for a decision on Deferred Action of Childhood Arrivals policy (DACA), which could cost the U.S. as many as 27,000 health care workers at the worst time possible if SCOTUS finds DACA unconstitutional.

This is an open thread.

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Originally Posted @ https://www.emptywheel.net/scotus/