|
FacebookEmpathyMom posted:I wonder if they got Gorsuch on board with the decision, and once Roberts saw the liberal wing was going to win anyway, he decided to join the majority to give cover to his neutral court myth he wants to perpetuate? No use burning his neutrality cred on something that's already lost. If he made a deal with Gorsuch to switch cases (I say this without awareness of what remains undecided in the session and also without awareness of what Roberts has/may yet still author) so he could write a particular opinion, part of that deal may have involved Gorsuch needing tha cover of not being a swing vote. That take on it raises the question of why such cover was even necessary for someone with a lifetime appointment, though - would it just be an expectation of having to deal with future arguments designed at convincing him as a swing vote (I recall this being brought up during Obergefell arguments wrt Kennedy)?
|
#
?
Jun 15, 2020 16:56
|
|
|
|
| # ? May 17, 2024 17:24 |
|
|
hobbesmaster posted:So Gorsuch actually is Justice Plain Language instead of one that just uses it to tie into knots for his own opinions like Scalia? You know Scalia wrote the opinion that held that Title VII’s harassment prohibition extended to same-sex harassment, right? Under somewhat similar logic to this case. (Don’t expect Gorsuch to be vastly different from Scalia, in other words. Both of them will twist words when they can and will abide by them when they’re extremely clear and nearly impossible to twist, especially when there’s serious societal pressure in favor of the clear interpretation and a RFRA escape route for churches and Hobby Lobby.)
|
|
#
?
Jun 15, 2020 17:00
|
|
|
FacebookEmpathyMom posted:I wonder if they got Gorsuch on board with the decision, and once Roberts saw the liberal wing was going to win anyway, he decided to join the majority to give cover to his neutral court myth he wants to perpetuate? No use burning his neutrality cred on something that's already lost. I think it's more likely that Roberts saw the way the case was going and joined the majority so that Gorsuch could write the opinion instead of Ginsburg.
|
|
#
?
Jun 15, 2020 17:02
|
|
|
nivdes posted:I think it's more likely that Roberts saw the way the case was going and joined the majority so that Gorsuch could write the opinion instead of Ginsburg. How could the opinion have been any broader? I think Gorsuch’s opinion is probably about as good as you’re going to get. I’d rather he pen this and she write something that isn’t so simple.
|
|
#
?
Jun 15, 2020 17:16
|
|
|
Why the gently caress isn't Kavanaugh's opinion 'i don't think the original intent of this statute was to protect homosexuals or trans people but the plain meaning of the text covers that. This court should not engage in law making and it is up to Congress to amend the language of the law of this isn't what they want.' Like, I get that he's just a regressive dick but shouldn't the natural position of textualists be that the intent of lawmakers is immaterial and it's Congress' job to fix poorly written laws?
|
|
#
?
Jun 15, 2020 17:37
|
|
|
roberts maybe joined the opinion to ensure the RFRA language made it in, because using the first amendment to strip workplace protections he doesn't like is basically his signature move this is all just jockeying for next term's decision implementing a full-scale RFRA-based exemption to the CRA. 5-4, thomas writing in concurrence that the CRA is unconstitutional.
|
|
#
?
Jun 15, 2020 17:42
|
|
|
nivdes posted:I think it's more likely that Roberts saw the way the case was going and joined the majority so that Gorsuch could write the opinion instead of Ginsburg. giving gorsuch the opinion ensures he stays in the majority
|
|
#
?
Jun 15, 2020 17:43
|
|
|
MrNemo posted:Why the gently caress isn't Kavanaugh's opinion 'i don't think the original intent of this statute was to protect homosexuals or trans people but the plain meaning of the text covers that. This court should not engage in law making and it is up to Congress to amend the language of the law of this isn't what they want.' Because they don't give a poo poo about actually being textualist. It's just a cover to implement right wing policy under the auspices of neutral text reading. They toss it aside if the text doesn't support them, see the INA, the Constitution and the Trump Muslim ban
|
|
#
?
Jun 15, 2020 18:17
|
|
|
There have been a couple of 5-4 decisions that have been Gorsuch + Liberals in the past I think Gorsuch is just a very weird brand of Libertarian
|
|
#
?
Jun 15, 2020 18:52
|
|
|
Nissin Cup Nudist posted:I think Gorsuch is just a very weird brand of Libertarian It's this.
|
|
#
?
Jun 15, 2020 18:57
|
|
|
Nissin Cup Nudist posted:There have been a couple of 5-4 decisions that have been Gorsuch + Liberals in the past Yeah, for better or worse, he's "just" a libertarian, not an American Hard-Right "libertarian" or a Libertarian Socialist or similar. It makes him pretty reliable, but not in the way the American right wants him to be, which owns.
|
|
#
?
Jun 15, 2020 19:01
|
|
|
Yeah with  the GOP got it exactly right with a young conservative who will bend over backwards to twist anything into conforming with conservative policy. With Gorsuch though they appear to have hosed up and accidentally appointed an idiosyncratic libertarian ideologue. I'm not saying he's good - he's signed on to loads of lovely opinions as well - but he feels like the biggest wildcard on the court at the moment. That said even when he pens an opinion I agree with I cannot loving stand his writing style whatsoever.
|
|
#
?
Jun 15, 2020 19:03
|
|
|
MrNemo posted:Why the gently caress isn't Kavanaugh's opinion 'i don't think the original intent of this statute was to protect homosexuals or trans people but the plain meaning of the text covers that. This court should not engage in law making and it is up to Congress to amend the language of the law of this isn't what they want.' wow it's almost as if textualism is bullshit that only applies when the text says what conservatives want sexpig by night posted:Roberts is, at his core, a coward afraid of his legacy being bad. Yeah I've always thought this argument was a slam-dunk personally and I guess I was right. I was also wrong because I never in a million years expected the conservative court to agree with it. I figured they'd pull some sophistry like Virginia's argument in Loving ("see it's not racial discrimination, it's conduct discrimination, because the ban on interracial marriages applies to black and white people equally, nobody gets 'special rights' to marry outside their race" -> "see it's not sex discrimination if men and women are fired equally for homosexual conduct")
|
|
#
?
Jun 15, 2020 19:06
|
|
|
Charlz Guybon posted:WTF? If Thomas and Sotomayor want to revisit the issue, how can there not be a majority to at least hear a case on it? The Thomas dissent says: quote:Petitioner Alexander Baxter was caught in the act of burgling a house. It is undisputed that police officers released a dog to apprehend him and that the dog bit him. Petitioner alleged that he had already surrendered when the dog was released. He sought damages from two officers under Rev. Stat. §1979, 42 U. S. C. §1983, alleging excessive force and failure to intervene, in violation of the Fourth Amendment.
|
|
#
?
Jun 15, 2020 19:22
|
|
|
 Opinions! TERENCE TRAMAINE ANDRUS v. TEXAS Holding / Majority Opinion (Per Curiam): During Andrus’ capital trial...nearly none of this mitigating evidence [about Andrus’ horrible childhood] reached the jury. That is because Andrus’ defense counsel not only neglected to present it; he failed even to look for it. Indeed, counsel performed virtually no investigation of the relevant evidence. Those failures also fettered the defense’s capacity to contextualize or counter the State’s evidence of Andrus’ alleged incidences of past violence. Only years later, during an 8-day evidentiary hearing in Andrus’ state habeas proceeding, did the grim facts of Andrus’ life history come to light. And when pressed at the hearing to provide his reasons for failing to investigate Andrus’ history, Andrus’ counsel offered none. … We conclude that the record makes clear that Andrus has demonstrated counsel’s deficient performance under Strickland, but that the Court of Criminal Appeals may have failed properly to engage with the follow-on question whether Andrus has shown that counsel’s deficient performance prejudiced him. We thus grant Andrus’ petition for a writ of certiorari, vacate the judgment of the Texas Court of Criminal Appeals, and remand the case for further proceedings not inconsistent with this opinion. … After considering all the evidence at the hearing, the Texas trial court concluded that Andrus’ counsel had been ineffective for “failing to investigate and present mitigating evidence regarding [Andrus’] abusive and neglectful childhood.” The court observed that the reason Andrus’ jury did not hear “relevant, available, and persuasive mitigating evidence” was that trial counsel had “fail[ed] to investigate and present all other mitigating evidence.” The court explained that “there [is] ample mitigating evidence which could have, and should have, been presented at the punishment phase of [Andrus’] trial.” For that reason, the court concluded that counsel had been constitutionally ineffective, and that habeas relief, in the form of a new punishment trial, was warranted. The Texas Court of Criminal Appeals rejected the trial court’s recommendation to grant habeas relief. In an unpublished per curiam order, the Court of Criminal Appeals concluded without elaboration that Andrus had “fail[ed] to meet his burden under Strickland v. Washington, 466 U. S. 668 (1984), to show by a preponderance of the evidence that his counsel’s representation fell below an objective standard of reasonableness and that there was a reasonable probability that the result of the proceedings would have been different but for counsel’s deficient performance.” A concurring opinion reasoned that, even if counsel had provided deficient performance under Strickland, Andrus could not show that counsel’s deficient performance prejudiced him. ... To prevail on a Sixth Amendment claim alleging ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that his counsel’s deficient performance prejudiced him. Strickland, 466 U. S., at 688, 694. To show deficiency, a defendant must show that “counsel’s representation fell below an objective standard of reasonableness.” And to establish prejudice, a defendant must show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” “It is unquestioned that under prevailing professional norms at the time of [Andrus’] trial, counsel had an ‘obligation to conduct a thorough investigation of the defendant’s background.’” Counsel in a death-penalty case has “‘a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.’” “‘In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.’” Here, the habeas record reveals that Andrus’ counsel fell short of his obligation in multiple ways: First, counsel performed almost no mitigation investigation, overlooking vast tranches of mitigating evidence. Second, due to counsel’s failure to investigate compelling mitigating evidence, what little evidence counsel did present backfired by bolstering the State’s aggravation case. Third, counsel failed adequately to investigate the State’s aggravating evidence, thereby forgoing critical opportunities to rebut the case in aggravation. Taken together, those deficiencies effected an unconstitutional abnegation of prevailing professional norms. … Having found deficient performance, the question remains whether counsel’s deficient performance prejudiced Andrus. Here, prejudice exists if there is a reasonable probability that, but for his counsel’s ineffectiveness, the jury would have made a different judgment about whether Andrus deserved the death penalty as opposed to a lesser sentence….Given the uncertainty as to whether the Texas Court of Criminal Appeals adequately conducted that weighty and record-intensive analysis in the first instance, we remand for the Court of Criminal Appeals to address Strickland prejudice in light of the correct legal principles articulated above. Lineup: Per Curiam. Dissent by Alito, joined by Thomas and Gorsuch. Dissent (Alito, joined by Thomas and Gorsuch): The Court clears this case off the docket, but it does so on a ground that is hard to take seriously. According to the Court, “[i]t is unclear whether the Court of Criminal Appeals considered Strickland prejudice at all.” But that reading is squarely contradicted by the opinion of the Court of Criminal Appeals (CCA), which said explicitly that Andrus failed to show prejudice: “[Andrus] fails to meet his burden under Strickland v. Washington, 466 U. S. 668 (1984), to show by a preponderance of the evidence that his counsel’s representation fell below an objective standard of reasonableness and that there was a reasonable probability that the result of the proceedings would have been different, but for counsel’s deficient performance.” Not only does the CCA opinion contain this express statement, but it adds that the trial court did not heed Strickland’s test for prejudice. And the record clearly shows that the trial court did not apply that test to Andrus’s claim. A majority of this Court cannot seriously think that the CCA pointed this out and then declined to reach the issue of prejudice. How, then, can the Court get around the unmistakable evidence that the CCA decided the issue of prejudice? It begins by expressing doubt about the meaning of the critical sentence reproduced above. According to the Court, that sentence “does not conclusively reveal whether [the CCA] determined . . . that Andrus had failed to demonstrate prejudice under Strickland’s second prong.” It is hard to write a more conclusive sentence than “[Andrus] fails to meet his burden under Strickland v. Washington, 466 U. S. 668 (1984), to show by a preponderance of the evidence . . . that there was a reasonable probability that the result of the proceedings would have been different, but for counsel’s deficient performance.” Perhaps the Court thinks the CCA should have used CAPITAL LETTERS or bold type. Or maybe it should have added: “And we really mean it!!!” … The Court gives two reasons for doubting that the CCA reached the issue of prejudice, but both are patent makeweights. First, the Court notes that the CCA’s per curiam opinion, unlike the concurring opinion, did not provide reasons for finding that prejudice had not been shown. But the failure to explain is not the same as failure to decide. Today’s “tutelary remand” is a misuse of our supervisory authority and a waste of our and the CCA’s time. Second, the Court observes that the concurring opinion, which discussed the question of prejudice at some length, was joined by only four of the CCA’s nine judges. But that does not show that the other five declined to decide the question of prejudice. The most that one might possibly infer is that these judges might not have agreed with everything in the concurrence, but even that is by no means a certainty. So the Court’s reading of the decision below is contrary to the plain language of the decision and is not supported by any reason worth mentioning. … The CCA assessed the issue of prejudice in light of more than the potentially mitigating evidence that the Court marshals for Andrus. The CCA had before it strong aggravating evidence that Andrus wantonly killed two innocent victims and shot a third; that he committed other violent crimes; that he has a violent, dangerous, and unstable character; and that he is a threat to those he encounters. The CCA has already held once that Andrus failed to establish prejudice. I see no good reason why it should be required to revisit the issue. https://www.supremecourt.gov/opinions/19pdf/18-9674_2dp3.pdf UNITED STATES FOREST SERVICE ET AL. v. COWPASTURE RIVER PRESERVATION ASSOCIATION ET AL. Holding / Majority Opinion (Thomas): We granted certiorari in these consolidated cases to decide whether the United States Forest Service has authority under the Mineral Leasing Act, 30 U. S. C. §181 et seq., to grant rights-of-way through lands within national forests traversed by the Appalachian Trail- We hold that the Mineral Leasing Act does grant the Forest Service that authority and therefore reverse the judgment of the Court of Appeals for the Fourth Circuit. In 2015, petitioner Atlantic Coast Pipeline, LLC (Atlantic) filed an application with the Federal Energy Regulatory Commission to construct and operate an approximately 604-mile natural gas pipeline extending from West Virginia to North Carolina. The pipeline’s proposed route traverses 16 miles of land within the George Washington National Forest. The Appalachian National Scenic Trail (Appalachian Trail or Trail) also crosses parts of the George Washington National Forest. To construct the pipeline, Atlantic needed to obtain special use permits from the United States Forest Service for the portions of the pipeline that would pass through lands under the Forest Service’s jurisdiction. In 2018, the Forest Service issued these permits and granted a right-of-way that would allow Atlantic to place a 0.1-mile segment of pipe approximately 600 feet below the Appalachian Trail in the George Washington National Forest. Respondents Cowpasture River Preservation Association, Highlanders for Responsible Development, Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network, Sierra Club, Virginia Wilderness Committee, and Wild Virginia filed a petition for review in the Fourth Circuit. They contended that the issuance of the special use permit for the right-of-way under the Trail, as well as numerous other aspects of the Forest Service’s regulatory process, violated the Mineral Leasing Act (Leasing Act), 41 Stat. 437, 30 U. S. C. §181 et seq., the National Environmental Policy Act of 1969, 83 Stat. 852, 42 U. S. C. §4321 et seq., the National Forest Management Act of 1976, 90 Stat. 2952, 16 U. S. C. §1604, and the Administrative Procedure Act, 5 U. S. C. §500 et seq. Atlantic intervened in the suit. The Fourth Circuit vacated the Forest Service’s special use permit after holding that the Leasing Act did not empower the Forest Service to grant the pipeline right-of-way beneath the Trail. As relevant here, the court concluded that the Appalachian Trail had become part of the National Park System because, though originally charged with the Trail’s administration, the Secretary of the Interior delegated that duty to the National Park Service. In the Fourth Circuit’s view, this delegation made the Trail part of the National Park System because the Trail was now an “area of land . . . administered by the Secretary [of the Interior] acting through the Director [of the National Park Service].” Because it concluded the Trail was now within the National Park System, the court held that the Trail was beyond the authority of “the Secretary of the Interior or appropriate agency head” to grant pipeline rights-of-way under the Leasing Act. … We are tasked with determining whether the Leasing Act enables the Forest Service to grant a subterranean pipeline right-of-way some 600 feet under the Appalachian Trail. To do this, we first focus on the distinction between the lands that the Trail traverses and the Trail itself, because the lands (not the Trail) are the object of the relevant statutes. Under the Leasing Act, the “Secretary of the Interior or appropriate agency head” may grant pipeline rights-of-way across “Federal lands.” The Forest Service is an “appropriate agency head” for “Federal lands” over “which [it] has jurisdiction.” As stated above, it is undisputed that the Forest Service has jurisdiction over the “Federal lands” within the George Washington National Forest. The question before us, then, becomes whether these lands within the forest have been removed from the Forest Service’s jurisdiction and placed under the Park Service’s control because the Trail crosses them. If no transfer of jurisdiction has occurred, then the lands remain National Forest lands, i.e., “Federal lands” subject to the grant of a pipeline right-ofway. If, on the other hand, jurisdiction over the lands has been transferred to the Park Service, then the lands fall under the Leasing Act’s carve-out for “lands in the National Park System,” thus precluding the grant of the right-of-way. We conclude that the lands that the Trail crosses remain under the Forest Service’s jurisdiction and, thus, continue to be “Federal lands” under the Leasing Act. We begin our analysis by examining the interests and authority granted under the Trails Act. Pursuant to the Trails Act, the Forest Service entered into “right-of-way” agreements with the National Park Service “for [the] approximately 780 miles of Appalachian Trail route within national forests,” including the George Washington National Forest. These “right-of-way” agreements did not convert “Federal lands” into “lands” within the “National Park System.” A right-of-way is a type of easement. In 1968, as now, principles of property law defined a right-of-way easement as granting a nonowner a limited privilege to “use the lands of another.”...Thus, it was, and is, elementary that the grantor of the easement retains ownership over “the land itself.” … Although the Federal Government owns all lands involved here, the same general principles apply. We must ascertain whether one federal agency has transferred jurisdiction over lands—meaning “jurisdiction to exercise the incidents of ownership”—to another federal agency. The Trails Act refers to the granted interests as “rights-of-way,” both when describing agreements with the Federal Government and with private and state property owners. 16 U. S. C. §§1246(a)(2), (e). When applied to a private or state property owner, “right-of-way” would carry its ordinary meaning of a limited right to enjoy another’s land….Accordingly, as would be the case with private or state property owners, a right-of-way between two agencies grants only an easement across the land, not jurisdiction over the land itself. … The various duties described in the Trails Act reinforce that the agency responsible for the Trail has a limited role of administering a trail easement, but that the underlying land remains within the jurisdiction of the Forest Service. The Trails Act states that the Secretary of the Interior (and by delegation the National Park Service) shall “administe[r]” the Trail “primarily as a footpath.”...As the Government explained at oral argument (and as respondents did not dispute), “[i]f a tree falls on forest lands over the trail, it’s the Forest Service that’s responsible for it. You don’t call the nine [National] Park Service employees at Harpers Ferry [in West Virginia] and ask them to come out and fix the tree.” … Finally, Congress has used unequivocal and direct language in multiple statutes when it wished to transfer land from one agency to another, just as one would expect if a property owner conveyed land in fee simple to another private property owner. In the Wild and Scenic Rivers Act, for instance, which was enacted the same day as the Trails Act, Congress specified that “[a]ny component of the national wild and scenic rivers system that is administered by the Secretary of the Interior through the National Park Service shall become a part of the [N]ational [P]ark [S]ystem.”...The fact that Congress chose to speak in terms of rights-of-way in the Trails Act, rather than in terms of land transfers, reinforces the conclusion that the Park Service has a limited role over only the Trail, not the lands that the Trail crosses. ... We hold that the Department of the Interior’s decision to assign responsibility over the Appalachian Trail to the National Park Service did not transform the land over which the Trail passes into land within the National Park System. Accordingly, the Forest Service had the authority to issue the permit here. For the foregoing reasons, we reverse the judgment of the Court of Appeals and remand the cases for further proceedings consistent with this opinion. Lineup: Thomas, joined by Roberts, Breyer, Alito, Gorsuch, and Kavanaugh, and Ginsburg (except III-B-2, relating to the amount of authority delegated to the Department of the Interior to expand the National Park Service). Dissent by Sotomayor, joined by Kagan Dissent (Sotomayor, joined by Kagan): The majority’s complicated discussion of private-law easements, footpath maintenance, differently worded statutes, and policy masks the simple (and only) dispute here. Is the Appalachian National Scenic Trail “lan[d] in the National Park System”? If it is, then the Forest Service may not grant a natural-gas pipeline right-of-way that crosses the Trail on federally owned land. So says the Mineral Leasing Act, and the parties do not disagree. By definition, lands in the National Park System include “any area of land” “administered” by the Park Service for “park, monument, historic, parkway, recreational, or other purposes.” So says the National Park Service Organic Act, and the parties agree. The Appalachian Trail, in turn, is “administered” by the Park Service to ensure “outdoor recreation” and to conserve “nationally significant scenic, historic, natural, or cultural qualities.” So say the National Trails System Act and relevant regulations, and again the parties agree. Thus, as the Government puts it, the only question here is whether parts of the Appalachian Trail are “‘lands’” within the meaning of those statutes. Those laws, a half century of agency understanding, and common sense confirm that the Trail is land, land on which generations of people have walked. Indeed, for 50 years the “Federal Government has referred to the Trail” as a “‘unit’” of the National Park System. A “unit” of the Park System is by definition either “land” or “water” in the Park System. Federal law does not distinguish “land” from the Trail any more than it distinguishes “land” from the many monuments, historic buildings, parkways, and recreational areas that are also units of the Park System. Because the Trail is land in the Park System, “no federal agency” has “authority under the Mineral Leasing Act to grant a pipeline right-of-way across such lands.” By contrast, today’s Court suggests that the Trail is not “land” in the Park System at all. The Court strives to separate “the lands that the Trail traverses” from “the Trail itself,” reasoning that the Trail is simply an “easement,” “not land.” In doing so, however, the Court relies on anything except the provisions that actually answer the question presented. Because today’s Court condones the placement of a pipeline that subverts the plain text of the statutes governing the Appalachian Trail, I respectfully dissent. https://www.supremecourt.gov/opinions/19pdf/18-1584_igdj.pdf
|
|
#
?
Jun 15, 2020 19:25
|
|
|
BOSTOCK v. CLAYTON COUNTY, GEORGIA Holding / Majority Opinion (Gorsuch): Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires 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. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit. … Each of the three cases before us started the same way: An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status...We granted certiorari in these matters to resolve at last the disagreement among the courts of appeals over the scope of Title VII’s protections for homosexual and transgender persons. … We must determine the ordinary public meaning of Title VII’s command that it is “unlawful . . . for an employer 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.” §2000e–2(a)(1). To do so, we orient ourselves to the time of the statute’s adoption, here 1964, and begin by examining the key statutory terms in turn before assessing their impact on the cases at hand and then confirming our work against this Court’s precedents. The only statutorily protected characteristic at issue in today’s cases is “sex”—and that is also the primary term in Title VII whose meaning the parties dispute. Appealing to roughly contemporaneous dictionaries, the employers say that, as used here, the term “sex” in 1964 referred to “status as either male or female [as] determined by reproductive biology.” The employees counter by submitting that, even in 1964, the term bore a broader scope, capturing more than anatomy and reaching at least some norms concerning gender identity and sexual orientation. But because nothing in our approach to these cases turns on the outcome of the parties’ debate, and because the employees concede the point for argument’s sake, we proceed on the assumption that “sex” signified what the employers suggest, referring only to biological distinctions between male and female. Still, that’s just a starting point. The question isn’t just what “sex” meant, but what Title VII says about it. Most notably, the statute prohibits employers from taking certain actions “because of ” sex. And, as this Court has previously explained, “the ordinary meaning of ‘because of ’ is ‘by reason of ’ or ‘on account of.’” In the language of law, this means that Title VII’s “because of ” test incorporates the “‘simple’” and “traditional” standard of but-for causation. That form of causation is established whenever a particular outcome would not have happened “but for” the purported cause. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause. This can be a sweeping standard. Often, events have multiple but-for causes. So, for example, if a car accident occurred both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, we might call each a but-for cause of the collision. When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff ’s sex was one but-for cause of that decision, that is enough to trigger the law. … The statute imposes liability on C employers only when they “fail or refuse to hire,” “discharge,” “or otherwise . . . discriminate against” someone because of a statutorily protected characteristic like sex. The employers acknowledge that they discharged the plaintiffs in today’s cases, but assert that the statute’s list of verbs is qualified by the last item on it: “otherwise . . . discriminate against.” By virtue of the word otherwise, the employers suggest, Title VII concerns itself not with every discharge, only with those discharges that involve discrimination. Accepting this point, too, for argument’s sake, the question becomes: What did “discriminate” mean in 1964? As it turns out, it meant then roughly what it means today: “To make a difference in treatment or favor (of one as compared with others).” To “discriminate against” a person, then, would seem to mean treating that individual worse than others who are similarly situated…[The statute] tells us three times—including immediately after the words “discriminate against”—that our focus should be on individuals, not groups: Employers may not “fail or refuse to hire or . . . discharge any individual, or otherwise . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.”...So an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it. From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. … The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision. That distinguishes these cases from countless others where Title VII has nothing to say. Take an employer who fires a female employee for tardiness or incompetence or simply supporting the wrong sports team. Assuming the employer would not have tolerated the same trait in a man, Title VII stands silent. But unlike any of these other traits or actions, homosexuality and transgender status are inextricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex. … If more support for our conclusion were required, there’s no need to look far. All that the statute’s plain terms suggest, this Court’s cases have already confirmed. Consider three of our leading precedents. In Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971) (per curiam), a company allegedly refused to hire women with young children, but did hire men with children the same age. Because its discrimination depended not only on the employee’s sex as a female but also on the presence of another criterion—namely, being a parent of young children—the company contended it hadn’t engaged in discrimination “because of ” sex...Unsurprisingly by now, these submissions did not sway the Court. … In Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702 (1978), an employer required women to make larger pension fund contributions than men. The employer sought to justify its disparate treatment on the ground that women tend to live longer than men, and thus are likely to receive more from the pension fund over time….The employer violated Title VII because, when its policy worked exactly as planned, it could not “pass the simple test” asking whether an individual female employee would have been treated the same regardless of her sex. ... In Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 (1998), a male plaintiff alleged that he was singled out by his male co-workers for sexual harassment….Because the plaintiff alleged that the harassment would not have taken place but for his sex—that is, the plaintiff would not have suffered similar treatment if he were female—a triable Title VII claim existed. … First, it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it….Second, the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action….Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups. … The employers’ argument proceeds in two stages. Seeking footing in the statutory text, they begin by advancing a number of reasons why discrimination on the basis of homosexuality or transgender status doesn’t involve discrimination because of sex. But each of these arguments turns out only to repackage errors we’ve already seen and this Court’s precedents have already rejected. In the end, the employers are left to retreat beyond the statute’s text, where they fault us for ignoring the legislature’s purposes in enacting Title VII or certain expectations about its operation. They warn, too, about consequences that might follow a ruling for the employees. But none of these contentions about what the employers think the law was meant to do, or should do, allow us to ignore the law as it is. … Maybe most intuitively, the employers assert that discrimination on the basis of homosexuality and transgender status aren’t referred to as sex discrimination in ordinary conversation. If asked by a friend (rather than a judge) why they were fired, even today’s plaintiffs would likely respond that it was because they were gay or transgender, not because of sex. According to the employers, that conversational answer, not the statute’s strict terms, should guide our thinking and suffice to defeat any suggestion that the employees now before us were fired because of sex. But this submission rests on a mistaken understanding of what kind of cause the law is looking for in a Title VII case. In conversation, a speaker is likely to focus on what seems most relevant or informative to the listener. So an employee who has just been fired is likely to identify the primary or most direct cause rather than list literally every but-for cause. To do otherwise would be tiring at best. But these conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex was a but-for cause. … Trying another angle, the defendants before us suggest that an employer who discriminates based on homosexuality or transgender status doesn’t intentionally discriminate based on sex, as a disparate treatment claim requires. But, as we’ve seen, an employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. … Next, the employers turn to Title VII’s list of protected characteristics—race, color, religion, sex, and national origin. Because homosexuality and transgender status can’t be found on that list and because they are conceptually distinct from sex, the employers reason, they are implicitly excluded from Title VII’s reach. Put another way, if Congress had wanted to address these matters in Title VII, it would have referenced them specifically. But that much does not follow. We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. … Ultimately, the employers are forced to abandon the statutory text and precedent altogether and appeal to assumptions and policy. Most pointedly, they contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. And whatever the text and our precedent indicate, they say, shouldn’t this fact cause us to pause before recognizing liability? … Some of those who supported adding language to Title VII to ban sex discrimination may have hoped it would derail the entire Civil Rights Act. Yet, contrary to those intentions, the bill became law. Since then, Title VII’s effects have unfolded with far-reaching consequences, some likely beyond what many in Congress or elsewhere expected. But none of this helps decide today’s cases. Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law. The judgments of the Second and Sixth Circuits in Nos. 17–1623 and 18–107 are affirmed. The judgment of the Eleventh Circuit in No. 17–1618 is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Lineup: Gorsuch, joined by Roberts, Ginsburg, Breyer, Sotomayor, and Kagan. Disseny by Alito, joined by Thomas. Dissent by Kavanaugh. Dissent (Alito, joined by Thomas): 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. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: “race, color, religion, sex, [and] national origin.” Neither “sexual orientation” nor “gender identity” appears on that list. For the past 45 years, bills have been introduced in Congress to add “sexual orientation” to the list, and in recent years, bills have included “gender identity” as well.2 But to date, none has passed both Houses. Last year, the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to include both “sexual orientation” and “gender identity,” H. R. 5, 116th Cong., 1st Sess. (2019), but the bill has stalled in the Senate. An alternative bill, H. R. 5331, 116th Cong., 1st Sess. (2019), would add similar prohibitions but contains provisions to protect religious liberty. This bill remains before a House Subcommittee. Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution (passage in both Houses and presentment to the President, Art. I, §7, cl. 2), Title VII’s prohibition of discrimination because of “sex” still means what it has always meant. But the Court is not deterred by these constitutional niceties. Usurping the constitutional authority of the other branches, the Court has essentially taken H. R. 5’s provision on employment discrimination and issued it under the guise of statutory interpretation. A more brazen abuse of our authority to interpret statutes is hard to recall. The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (emphasis added). If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation––not to mention gender identity, a concept that was essentially unknown at the time. The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society. If the Court finds it appropriate to adopt this theory, it should own up to what it is doing. 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. It indisputably did not. Title VII, as noted, prohibits discrimination “because of . . . sex,” §2000e–2(a)(1), and in 1964, it was as clear as clear could be that this meant discrimination because of the genetic and anatomical characteristics that men and women have at the time of birth. Determined searching has not found a single dictionary from that time that defined “sex” to mean sexual orientation, gender identity, or “transgender status.” Contrary to the Court’s contention, discrimination because of sexual orientation or gender identity does not in and of itself entail discrimination because of sex. We can see this because it is quite possible for an employer to discriminate on those grounds without taking the sex of an individual applicant or employee into account. An employer can have a policy that says: “We do not hire gays, lesbians, or transgender individuals.” And an employer can implement this policy without paying any attention to or even knowing the biological sex of gay, lesbian, and transgender applicants. In fact, at the time of the enactment of Title VII, the United States military had a blanket policy of refusing to enlist gays or lesbians, and under this policy for years thereafter, applicants for enlistment were required to complete a form that asked whether they were “homosexual.” … In 1964, the concept of prohibiting discrimination “because of sex” was no novelty. It was a familiar and well-understood concept, and what it meant was equal treatment for men and women. Long before Title VII was adopted, many pioneering state and federal laws had used language substantively indistinguishable from Title VII’s critical phrase, “discrimination because of sex.” … The most prominent example of a provision using this language was the Nineteenth Amendment, ratified in 1920, which bans the denial or abridgment of the right to vote “on account of sex.” … Discrimination “because of sex” was not understood as having anything to do with discrimination because of sexual orientation or transgender status. Any such notion would have clashed in spectacular fashion with the societal norms of the day. … What the Court has done today––interpreting discrimination because of “sex” to encompass discrimination because of sexual orientation or gender identity––is virtually certain to have far-reaching consequences. Over 100 federal statutes prohibit discrimination because of sex. The briefs in these cases have called to our attention the potential effects that the Court’s reasoning may have under some of these laws, but the Court waves those considerations aside. As to Title VII itself, the Court dismisses questions about “bathrooms, locker rooms, or anything else of the kind.” Ante, at 31. And it declines to say anything about other statutes whose terms mirror Title VII’s. … Although the Court does not want to think about the consequences of its decision, we will not be able to avoid those issues for long. The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning. Dissent (Kavanaugh): Like many cases in this Court, this case boils down to one fundamental question: Who decides? Title VII of the Civil Rights Act of 1964 prohibits employment discrimination “because of ” an individual’s “race, color, religion, sex, or national origin.” The question here is whether Title VII should be expanded to prohibit employment discrimination because of sexual orientation. Under the Constitution’s separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court. The political branches are well aware of this issue. … The policy arguments for amending Title VII are very weighty. … But we are judges, not Members of Congress. And in Alexander Hamilton’s words, federal judges exercise “neither Force nor Will, but merely judgment.” Under the Constitution’s separation of powers, our role as judges is to interpret and follow the law as written, regardless of whether we like the result.Our role is not to make or amend the law. As written, Title VII does not prohibit employment discrimination because of sexual orientation. … Because judges interpret the law as written, not as they might wish it were written, the first 10 U. S. Courts of Appeals to consider whether Title VII prohibits sexual orientation discrimination all said no. Some 30 federal judges considered the question. All 30 judges said no, based on the text of the statute. 30 out of 30. But in the last few years, a new theory has emerged. To end-run the bedrock separation-of-powers principle that courts may not unilaterally rewrite statutes, the plaintiffs here (and, recently, two Courts of Appeals) have advanced a novel and creative argument. They contend that discrimination “because of sexual orientation” and discrimination “because of sex” are actually not separate categories of discrimination after all. Instead, the theory goes, discrimination because of sexual orientation always qualifies as discrimination because of sex: When a gay man is fired because he is gay, he is fired because he is attracted to men, even though a similarly situated woman would not be fired just because she is attracted to men. According to this theory, it follows that the man has been fired, at least as a literal matter, because of his sex. Under this literalist approach, sexual orientation discrimination automatically qualifies as sex discrimination, and Title VII’s prohibition against sex discrimination therefore also prohibits sexual orientation discrimination—and actually has done so since 1964, unbeknownst to everyone. Surprisingly, the Court today buys into this approach. For the sake of argument, I will assume that firing someone because of their sexual orientation may, as a very literal matter, entail making a distinction based on sex. But to prevail in this case with their literalist approach, the plaintiffs must also establish one of two other points. The plaintiffs must establish that courts, when interpreting a statute, adhere to literal meaning rather than ordinary meaning. Or alternatively, the plaintiffs must establish that the ordinary meaning of “discriminate because of sex”—not just the literal meaning—encompasses sexual orientation discrimination. The plaintiffs fall short on both counts. … In light of the bedrock principle that we must adhere to the ordinary meaning of a phrase, the question in this case boils down to the ordinary meaning of the phrase “discriminate because of sex.” Does the ordinary meaning of that phrase encompass discrimination because of sexual orientation? The answer is plainly no. On occasion, it can be difficult for judges to assess ordinary meaning. Not here. Both common parlance and common legal usage treat sex discrimination and sexual orientation discrimination as two distinct categories of discrimination—back in 1964 and still today. … Almost every state statute or executive order proscribing sexual orientation discrimination expressly prohibits sexual orientation discrimination separately from the State’s ban on sex discrimination. That common usage in the States underscores that sexual orientation discrimination is commonly understood as a legal concept distinct from sex discrimination. And it is the common understanding in this Court as well. Since 1971, the Court has employed rigorous or heightened constitutional scrutiny of laws that classify on the basis of sexOver the last several decades, the Court has also decided many cases involving sexual orientation. But in those cases, the Court never suggested that sexual orientation discrimination is just a form of sex discrimination. All of the Court’s cases from Bowers to Romer to Lawrence to Windsor to Obergefell would have been far easier to analyze and decide if sexual orientation discrimination were just a form of sex discrimination and therefore received the same heightened scrutiny as sex discrimination under the Equal Protection Clause. Did the Court in all of those sexual orientation cases just miss that obvious answer—and overlook the fact that sexual orientation discrimination is actually a form of sex discrimination? That seems implausible. Nineteen Justices have participated in those cases. Not a single Justice stated or even hinted that sexual orientation discrimination was just a form of sex discrimination and therefore entitled to the same heightened scrutiny under the Equal Protection Clause. The opinions in those five cases contain no trace of such reasoning. That is presumably because everyone on this Court, too, has long understood that sexual orientation discrimination is distinct from, and not a form of, sex discrimination. In sum, all of the usual indicators of ordinary meaning— common parlance, common usage by Congress, the practice in the Executive Branch, the laws in the States, and the decisions of this Court—overwhelmingly establish that sexual orientation discrimination is distinct from, and not a form of, sex discrimination. The usage has been consistent across decades, in both the federal and state contexts. … In judicially rewriting Title VII, the Court today cashiers an ongoing legislative process, at a time when a new law to prohibit sexual orientation discrimination was probably close at hand. … Instead of a hard-earned victory won through the democratic process, today’s victory is brought about by judicial dictate—judges latching on to a novel form of living literalism to rewrite ordinary meaning and remake American law. Under the Constitution and laws of the United States, this Court is the wrong body to change American law in that way. The Court’s ruling “comes at a great cost to representative self-government.” And the implications of this Court’s usurpation of the legislative process will likely reverberate in unpredictable ways for years to come. Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII. I therefore must respectfully dissent from the Court’s judgment. https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf
|
|
#
?
Jun 15, 2020 19:25
|
|
|
https://twitter.com/LeahLitman/status/1272527150445408260 https://twitter.com/JoshABlock/status/1272525491807928334
|
|
#
?
Jun 15, 2020 19:30
|
|
|
MrNemo posted:Why the gently caress isn't Kavanaugh's opinion 'i don't think the original intent of this statute was to protect homosexuals or trans people but the plain meaning of the text covers that. This court should not engage in law making and it is up to Congress to amend the language of the law of this isn't what they want.'  (shamelessly stolen from the GBF discord) FacebookEmpathyMom posted:I wonder if they got Gorsuch on board with the decision, and once Roberts saw the liberal wing was going to win anyway, he decided to join the majority to give cover to his neutral court myth he wants to perpetuate? No use burning his neutrality cred on something that's already lost. Roberts knows that LGBT rights are extremely popular and any wedge there is between a supermajority and a small group of (largely evangelical, and shrinking) bigots. Though if he knew Gorsuch was going to side with the Liberals he probably went with them for optics because hasn't Roberts' history on gay rights been pretty bad, just not as bad as people like Alito? Nissin Cup Nudist posted:I think Gorsuch is just a very weird brand of Libertarian Also called Libertarian. Gorsuch isn't as bad as Beer McScream but he's still to the right of Kennedy, to say nothing of Garland or an actual Obama appointee had McConnell not been such a power-mongering fuckstain.
|
|
#
?
Jun 15, 2020 19:59
|
|
|
As happy as I am about the 6-3 ruling and the SCOTUS not hearing the challenge to sanctuary laws, I have the terrible feeling it's just the calm before the 5-4 storm that sides with Trump on all of his subpoena and tax lawsuits but I'd love to be wrong.
|
|
#
?
Jun 15, 2020 20:06
|
|
|
Evil Fluffy posted:As happy as I am about the 6-3 ruling and the SCOTUS not hearing the challenge to sanctuary laws, I have the terrible feeling it's just the calm before the 5-4 storm that sides with Trump on all of his subpoena and tax lawsuits but I'd love to be wrong. Oh it'll definitely be a series of "let the voters work it out"
|
|
#
?
Jun 15, 2020 20:10
|
|
|
Man even when Gorsuch is writing a good decision his writing is just so bad.
|
|
#
?
Jun 15, 2020 20:13
|
|
|
TERENCE TRAMAINE ANDRUS v. TEXAS seems like a good example of a court disagreeing with how a lower court interpreted facts and then having to invent some bullshit to overturn it
|
|
#
?
Jun 15, 2020 22:42
|
|
|
Is Gorsuch an actual strict constructionist, or is he being one in this instant?
|
|
#
?
Jun 15, 2020 23:59
|
|
|
EwokEntourage posted:TERENCE TRAMAINE ANDRUS v. TEXAS seems like a good example of a court disagreeing with how a lower court interpreted facts and then having to invent some bullshit to overturn it Also incredibly pointless because it’s not like the lower court’s not going to bite on Strickland prong two.
|
|
#
?
Jun 16, 2020 00:09
|
|
|
ulmont posted:Also incredibly pointless because it’s not like the lower court’s not going to bite on Strickland prong two. The saddest part is even if the defendant wins completely, they get another penalty phase. In Texas.
|
|
#
?
Jun 16, 2020 00:16
|
|
|
Jaxyon posted:Is Gorsuch an actual strict constructionist, or is he being one in this instant? That'd depend on whether he rules against Trump or not on the subpoena and tax info cases, especially the one from Congress where it's arguing about a law that says records shall be provided to the committee head. A strict reading means shall = this is not a request, you will do this thing or else.
|
|
#
?
Jun 16, 2020 00:48
|
|
|
Jaxyon posted:Is Gorsuch an actual strict constructionist, or is he being one in this instant? I think the former has yet to be seen. This is just a blindingly obvious situation for anyone with a high school level reading comprehension. Plus it gave him the chance to dunk on someone with dictionaries, and Gorsuch is the personification of a c+ essay that opens with a dictionary definition. I don't care either way just because of how god damned salty alito is over the whole thing.
|
|
#
?
Jun 16, 2020 00:50
|
|
|
FacebookEmpathyMom posted:I wonder if they got Gorsuch on board with the decision, and once Roberts saw the liberal wing was going to win anyway, he decided to join the majority to give cover to his neutral court myth he wants to perpetuate? No use burning his neutrality cred on something that's already lost. Normally I'd say the Chief Justice usually joins a winning decision he disagrees with so he can assign it to the justice he
|
|
#
?
Jun 16, 2020 01:03
|
|
|
I can't see how RBG could have written a more expansive opinion. Neil said if sex has any determination on an employment decision even if it isn't the only or primary reason, it's unlawful under Title VII. Sexual orientation and gender identity necessary implicate sex as a basic function of their definitions. That's extremely far reaching in scope and will impact a number of existing laws.
|
|
#
?
Jun 16, 2020 01:09
|
|
|
I remember reading the transcripts of the case when it was argued and it's interesting to see Gorsuch basically repeat the argument and examples given by the petitioner. Maybe I'll look it up later to double check but I also swear part of it came directly from Breyers questions too. Part of it reminded me of his sort of meandering way of arriving at a conclusion in oral arguments.
|
|
#
?
Jun 16, 2020 01:12
|
|
|
Armack posted:How on earth do we square Roberts joining the liberals in Bostock with his extremely lovely dissent in Obergefell? I thought Roberts hated LGBT+ people? From his Obergefell dissent: "...the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?" There was sort of a negotiable conservative opinion on gay marriage, one a hard-line conservative gay once gave to me, that the government from the top-down should abolish any legal recognition of anything called marriage, essentially turning it into a religious ritual with no legal implications like a baptism or whatever, and come up with a secular institution that is the very same thing but without any churches claiming to have an investment in it. I always took Roberts for one of those.
|
|
#
?
Jun 16, 2020 02:28
|
|
|
Hahahaha the tax implications alone would be hard to even imagine.
|
|
#
?
Jun 16, 2020 03:39
|
|
|
When Roberts rules against standard conservative stuff, I just don't think he's sincere. He wants to appear impartial and apolitical, so he throws a bone to liberals a couple times a year so he can say "See?!" This was an easy one for him because he knows most people don't hate gay people, and now he gets to get rid of abortion and let Trump deny the House financial documents.
|
|
#
?
Jun 16, 2020 03:55
|
|
|
Discendo Vox posted:Hahahaha the tax implications alone would be hard to even imagine. Even if we just changed the name of all Marriage Records to Something Not Called Marriage Records? The point wasn't to actually change things so much as to let churches take the word "marriage" away and carry it off into irrelevance while the government issues civil unions equally unto all.
|
|
#
?
Jun 16, 2020 06:18
|
|
|
Discendo Vox posted:Hahahaha the tax implications alone would be hard to even imagine. The whole idea of the argument is "marriage" is now called "civil unions" to the government and makes no difference between whether it's straight or gay couples. Taxes and other spousal rights would be completely untouched. The label "marriage" would, as far as the government is concerned, mean nothing. If religious or secular people wanted to get married they could and "B-b-b-but God" arguments from bigots would fall on deaf ears in the courts.
|
|
#
?
Jun 16, 2020 06:26
|
|
|
Crows Turn Off posted:When Roberts rules against standard conservative stuff, I just don't think he's sincere. He wants to appear impartial and apolitical, so he throws a bone to liberals a couple times a year so he can say "See?!" This was an easy one for him because he knows most people don't hate gay people, and now he gets to get rid of abortion and let Trump deny the House financial documents. Considering the Supreme Court is a life-time appointment and only once has a judge been impeached, what would Roberts have to gain in deceiving the American people?
|
|
#
?
Jun 16, 2020 06:52
|
|
|
Edward Mass posted:Considering the Supreme Court is a life-time appointment and only once has a judge been impeached, what would Roberts have to gain in deceiving the American people? In the short term, if the court is perceived as nakedly partisan and far out of touch, packing could become a palatable solution. Chief Justice is a nice title, but there wouldn't be much power to gut voting rights if he's always in a five-justice minority. In the longer term, he wants the freedom to be an rear end in a top hat without history throwing him into the same bucket as Taney.
|
|
#
?
Jun 16, 2020 07:21
|
|
|
Edward Mass posted:Considering the Supreme Court is a life-time appointment and only once has a judge been impeached, what would Roberts have to gain in deceiving the American people? avoiding a dilution of his own power (by reform or simply a repudiation of authority) if it were to become widely held in the non-terminally-online world that the court is a sham
|
|
#
?
Jun 16, 2020 07:25
|
|
|
Evil Fluffy posted:The whole idea of the argument is "marriage" is now called "civil unions" to the government and makes no difference between whether it's straight or gay couples. Taxes and other spousal rights would be completely untouched. The label "marriage" would, as far as the government is concerned, mean nothing. If religious or secular people wanted to get married they could and "B-b-b-but God" arguments from bigots would fall on deaf ears in the courts. Armack posted:How on earth do we square Roberts joining the liberals in Bostock with his extremely lovely dissent in Obergefell? (With the absence of the ERA, the Constitution DOESN'T prohibit discrimination based on sex, so the entire basis for this opinion doesn't even apply to Obergefell.)
|
|
#
?
Jun 16, 2020 08:47
|
|
|
|
| # ? May 17, 2024 17:24 |
|
|
Edward Mass posted:Considering the Supreme Court is a life-time appointment and only once has a judge been impeached, what would Roberts have to gain in deceiving the American people? A switch in time that saved nine
|
|
#
?
Jun 16, 2020 18:20
|
|
