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The Right-Wing Plan To Rig SCOTUS

We used to pretend that there was a bipartisan understanding that we would put reasonably independent people on the Supreme Court. Long after that became a obvious lie, nominees would pretend they cared about independence, and assert their neutrality. Remember the smarmy testimony of John Roberts at his confirmation hearing in 2005:

I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it’s my job to call balls and strikes and not to pitch or bat.

Those words are a sour joke now, but at the time most people at least pretended to believe them, and to believe that Roberts meant them. The questioning of Judge Ketanji Brown Jackson and the anticipated vote on her confirmation make it obvious that the Republicans aren’t even pretending now. Senator Ben Sasse, R-Neb., explained why he won’t vote to confirm Judge Jackson.

“Judge Jackson is an extraordinary person with an extraordinary American story,” Sasse said in a statement. “We both love this country, but we disagree on judicial philosophy and I am sadly unable to vote for this confirmation.

“Judge Jackson has impeccable credentials and a deep knowledge of the law, but at every turn this week she not only refused to claim originalism as her judicial philosophy, she refused to claim any judicial philosophy at all. Although she explained originalism and textualism in some detail to the committee, Judge Jackson refused to embrace them or any other precise system of limits on the judicial role,” the lawmaker said.

Sasse is blowing smoke. Judge Jackson has a judicial philosophy, and she explained it in her opening statement.

I have been a judge for nearly a decade now, and I take that responsibility and my duty to be independent very seriously. I decide cases from a neutral posture. I evaluate the facts, and I interpret and apply the law to the facts of the case before me, without fear or favor, consistent with my judicial oath.

Judge Jackson said she uses both originalism and textualism as helpful tools in making decisions, along with other tools developed over the past 230 years. But that’s not what Republicans want. They want assurances that they will win, and the code words are “originalism” and “textualism”.

Jack Balkin, a long-time law professor at Yale, wrote a short history of originalism and textualism. He explains that in the early 1970s, conservatives were looking for a judicial theory that would enable them to roll back the gains made by individuals and government in the Courts, and for ways to use courts to stall and kill government regulation of corporations and rich people. These two theories were created for the task. They are relentlessly pushed by right-wing rich people through their pet project, the Federalist Society and through support for conservative law professors.

Originalism is the idea that the Constitution should be construed in accordance with the public meaning of the words used at the time it was adopted. As a theory, it relies on the idea that SCOTUS can figure out what that public meaning was.

Textualism is the idea that statutes and the Constitution should be interpreted by reference solely to the words on the page, without regard to anything else. The goals of the legislation, the context, legislative history, none of it is relevant. Textualism relies on the idea that a legislature chooses every word in a law intentionally, that each word has only one meaning for purposes of the law, and that a judge can determine that meaning simply by reading the words maybe with the help of a dictionary.

There’s a germ of wisdom here. Some Constitutional language is capable of exactly one interpretation. Thus, the requirement that a person elected to the House have attained the age of 25 years when elected is capable of only one interpretation, as long as we agree that the election happens on the date of the election, and not the date when the vote is counted and certified under applicable state law.

No one really believes that there is a single fixed meaning to the words legislators use, or that they carefully picked every word, and no one really believes that every word of the Constitution was chosen to express some fixed idea. Let’s try some examples.

The Eighth Amendment prohibits Cruel and Unusual Punishments. SCOTUS recenetly ruled that the death penalty cannot be imposed for rape, but that was allowed for centuries. Does that mean that originalists and textualists would overturn Coker v. Georgia?

The Tenth Amendment says:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

There were no abortion laws in the US in 1791. Does that mean the matter is reserved to the people? Or to the states? How do you know which? Was there a Public Meaning of the words in the Tenth Amendment that would shed light on this question? Can you tell from the words?

Conservatives said that these two constructs, originalism and textualism, were neutral, and would constrain courts. That’s not what happened. In practice, textualism and originalism produced results in accordance with conservative demands in most cases. This essay lays out the evidence with links.

Lately there’s been concern among religious conservatives as to whether originalism and textualism are enough to get their way in full. Bostock v. Clayton County considered whether The Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of “sex”, applied to gay and transgender people. J. Gorsuch held that it did on textualist grounds. J. Alito dissented on originalist grounds. The uproar that followed among the political Christians revealed the true focus of these two constructs: to use the courts to impose political preferences on a majority that has moved on.

Consider, as Professor Balkin does, the work of Adrian Vermuele, a Harvard professor and Catholic. Vermuele agrees with Balkin’s analysis of the history of originalism and textualism, but goes farther.

But originalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation. Such an approach—one might call it “common-good constitutionalism”—should be based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate.

For the right-wing it isn’t enough that a judge is fully qualified. They will only confirm nominees who will vote for conservative positions regardless of law or precedent or good sense. Republicans are the right-wing party. They want to rig SCOTUS.

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.

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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~

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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:

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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.

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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.