Abomination in Our Nation

On Monday a draft opinion was leaked from the Supreme Court. Leaks from the Supreme Court are extremely rare, and in the past have been limited to someone saying what a final ruling outcome was going to be. There has never been a leak of a brief—in the entire history of the Court.

image of the Supreme Court leaked draft opinion
screenshot from Glenn Beck's Wednesday Special

 

The Betrayal of Trust

Justice Roberts verified on Tuesday that the leaked draft was authentic. He pointed out that it was still an early draft—it is from early February—and is part of how the Court works through their opinions; it represents neither the final opinion of any justice nor the final ruling. He also calls the leak a betrayal. There is speculation on what that means to the perpetrator when caught, but is likely to include firing at minimum, probably losing their law license for life, and possibly criminal charges for mishandling private court documents.

Law vlogger Robert Gouveia shared a couple of tweets that indicate the seriousness of this betrayal of trust. One is from SCOUTUSblog. It says,

It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.

Robert Gouveia shares a SCOTUSblog tweet
screenshot from here

The other tweet Gouveia shares is from @OrinKerr, passed on to him from @isamuel, who had clerked for Justice Scalia, who tells this story (which I found linked to here) of welcome day for new clerks:

But nothing will ever beat Justice Scalia on probably the first day that all four law clerks had started. He summoned us all in and said, “Welcome aboard. I’m really happy to have you. Here’s how I run my chambers. It’s an open door—if you need to talk to me about something, just come and talk to me.” And he said, almost with a hint of regret that he had to do this—obviously he was not that regretful, because he did do it—he said, “I want to just emphasize something, and I only want to say it once. If I ever discover that you have betrayed the confidences of what goes on in these chambers, I will do everything in my power to ruin your career.” Then he just let that hang there for a second, and moved on to other topics. It wasn’t said in a mean way, but it also wasn’t said in a way that admitted the slightest misunderstanding. He certainly did not sound like he was even a little bit kidding. Again, at the time, I’m a twentysomething-year-old lawyer. This is Justice Antonin Scalia. It does not require his power to ruin my career. The amount of power in his pinky finger was quite sufficient. So as a result, I was never tempted to betray his confidences and I doubt I ever will be. He only said it once, and other than that was quite a genial boss. But in that one moment, you really got the sense that he was serious.   

If each justice has about four clerks, the number of people with access to the document was quite limited. It should not be impossible to discover who leaked it. Trust is gone, severely limiting the normal functioning of the Supreme Court, until the leaker if found and removed.

Oddly, the story being talked about in media and by the Biden administration is ignoring this man-bites-dog level of out-of-the-ordinary leak. It is concentrating only on the contents of the leaked document.

 

The Pressure Campaign

The document is the draft majority opinion, authored by Justice Samuel Alito, on the Dobbs case. That’s regarding the Tennessee law prohibiting abortion after 15 weeks. Tennessee asked the Supreme Court to consider reversing Roe and Casey as they determine whether the Tennessee law was constitutional. The opinion is close to a hundred pages long, carefully and accurately detailing the wrongness of Roe and Casey.

This should be no surprise to anyone. First of all, the Court chose to take up the case; that showed a willingness to consider the issue. Second, we all heard the oral arguments in December. Third, we have known Alito to be a reliable conservative on the Court likely to go this direction.

The process of the Court is to circulate and exchange opinions. Then the other justices decide whether they concur in full or in part. They may like an outcome but prefer to emphasize a different line of reasoning. Or they may dissent, and then write their dissenting opinion based on refuting the arguments in the majority opinion. Or they could be persuaded by the arguments another justice makes and actually change their opinion.

What the leak has led to, however, is an opportunity for the pro-abortion crowd to stir up emotion, fear, and pressure—in the hopes of persuading a justice or two to change their positions—more out of fear than persuasive argument or even a sense that the country is against such a ruling. This includes fear for their lives and the lives of their families—which means that people whose goal is to kill as many babies in the womb as they possibly can might also be willing to kill older humans.

By the way, the American people may have some mixed ideas about whether Roe should be overturned, but they are definitely not in step with this pro-abortion-under-all-circumstances-up-until-birth mob that’s doing so much wailing and teeth gnashing. Stu Burguire shows some statistics on his show from polling. 

stats shown on Stu Burguiere's show
screenshot from here

more polling data shown on Stu Burguiere's show
screenshot from here

What If…

If Roe and Casey are overturned, what does that mean? It means that, because the Constitution is silent on abortion, it is a decision to be left to the states. I believe there is—and always has been—an argument on the pro-life side that the life of the pre-born deserves protection under the Constitution. There are places in law where that life is protected, and taking that life is punished as murder; but calling it abortion and pretending that it is a woman’s healthcare choice has muddied the clear understanding. So now it is better to give the decision back to the states than to dictate from Washington.

If states are to be able to make the decision, they will make varied decisions—as do most of the nations in the world, only a few of which (the ugliest regimes, as it happens) allow abortion as freely as the US has.

We know much more about the growing fetus than was known at the time of Roe. That it is a life, well before viability. Viability is getting ever earlier. And, in fact, there’s already a heartbeat as early as six weeks. Logically, biologically, there is a growing person with their own identifiable DNA from conception on. Growth is a sign of life. And the DNA shows it is not only human life, but a unique individual person.

Casey set aside the 3-trimester/3-rules system invented in the Roe decision, giving a nod to the viability standard but mostly ignoring the “when does the life of a baby become important?” question and switched to the “undue burden” standard. States could regulate abortion—as long as they didn’t create an undue burden on that woman who was planning to kill her pre-born child.

Without Roe and Casey, states where people value life will become free to limit or eliminate abortion. States where people want to keep killing the pre-born will be able to do that. California has already volunteered itself as an abortion destination, with free flights to their state to kill your baby. New York is likely to continue killing more babies than are born. No one will be more than a two-hour plane trip from an abortion clinic. And you can assume there will be nonprofits willing to pay for those trips. So, all those cries of desperation and deprivation for women are unfounded.

It's hard to say whether this change will prevent any abortions. It certainly won’t prevent any of the determined ones. But maybe it will prevent some of the hesitating ones—the ones where a young woman is scared and uncertain and asks for help and relief, and instead of getting good information and encouragement to seek alternatives, she is pushed into having an abortion. Those might be prevented.

When the mobbing crowds show up with their coat hangers and printed posters to protest in front of the Supreme Court, they’re hyperbolic and emotional—on purpose. For what a Disinformation Governance Board ought to see clearly as disinformation, but of course won’t.

Elizabeth Warren, in a raging rant about Roe,
made the rounds, but I go this screenshot
from Glenn Beck's Wednesday special

What was Elizabeth Warren so suddenly upset about in her major meltdown? She has known since early December that something like the Alito draft would be circulating within the Court, and that a ruling could go that way. She’s not shocked. The outrage is dialed up on purpose.

There’s a larger goal. Use this issue. Use it to try to push forth legislation to “codify Roe.” That’s the claim, although they’re throwing out that “viability” standard entirely and planning to enforce abortion up to the moment of first breath outside the womb—or maybe beyond. They’ll push that through by claiming it’s about a woman’s body—ignoring the little person whose life they’re snuffing out. And they will need to eliminate the filibuster in order to push through something so at odds with what most of the American people want. And, since they’re eliminating the filibuster, then they can push through other things, like court packing; i.e., adding more partisan justices to the Supreme Court.

They already have the legislation ready for a vote next week. That doesn’t mean they’ll get it. But it does mean they had this planned for a while and were waiting for the right moment.

Yesterday the ACLJ mentioned on their podcast that Politico, the outlet that leaked the memo, had given the administration a heads up about their plan days ahead of Monday. Probably they were asking for comment for their article. But that advanced notice is why you could see printed signs and large crowds appearing outside the Court building almost immediately after the news came out.

 

The Ruling Is Just the Beginning

If the SCOTUS ruling goes through as we hope, then the battle—or rather many more local battles—will begin in the states. In some states that means outlawing most or all abortions. Here in Texas we have a trigger law, saying that, if Roe is reversed, abortion is illegal in Texas except to save the life of the mother. This trigger law wasn’t actually necessary, because Texas law prior to Roe is still on the books, and that outlawed abortion in the state.

Some other states may limit abortions and regulate clinics. Other states, unfortunately, will allow them under all the conditions they have been doing them for some time—or maybe worse.

But it would take the condemnation for this abomination off the American people as a whole. Some states would remain condemned by God. But some states—and the people in them—could fight successfully for the life of the not-yet-born. And we could fight for the souls of women in crisis, who don’t want to be Moloch worshippers, but are led to that path with the lie that it’s easy and there’s no other choice.

Glenn Beck shared this tweet and image of Moloch on his
Wednesday special. Moloch worship meant they could
engage in any debauchery they wanted, and all they had
to do was sacrifice their children. Sounds familiar.

Pro-abortion people are not pro-choice. They do not want any state to make a different choice. They do not want any woman to get the information that might cause her to make a different choice. Pro-abortion people want to force their depravity on all of society—and coerce society to pay for the abomination with their taxes. This is an all-out war of evil against good. Spoiler alert: Good wins. But in the meantime there’s going to be a crazy amount of evil thrashing around in desperation. That’s what we’re seeing.

Another Bad Abortion Ruling

Everything the Supreme Court has not yet ruled on comes out today or tomorrow, since their end of term is the end of June.

It’s the divisive cases that get the attention. Today’s is an abortion case: June Medical Services v. Russo. Russo is the Interim Secretary of the Louisiana Department of Health, so we could call it June Medical Services v. Louisiana Dept. of Health.

The case is very similar, according to the plurality (not majority) opinion, to the case from Texas in Whole Woman’s Health v. Hellerstedt. The essence is that each state legislated a law requiring doctors at abortion services to have admitting privileges at a nearby hospital, for the sake of women’s health.

That part of the Texas law was overturned in 2016, based on the possibility that too many abortion facilities would close, which, using the Casey standard (Planned Parenthood v. Casey in 1992), was deemed to have placed an undue burden on women seeking abortions.

Justice Roberts dissented in that case. But, now that it has been precedent for a whole four years, he concurs with the plurality (winning) opinion because of stare decisis:

I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.

Chief Justice John Roberts
image: Leah Millis/Associated Press, found here

The dissents explain his error, but it’s notable that, of the most controversial cases this session, he as sided with the conservatives only once—on the Seila Law decision, splitting with constitutional textualism on Bostock, DACA, and now June Medical Services. Because of personal interest? 

I wrote several times on the Whole Woman’s Health case, since it was pertinent here in Texas.

·         Texas Abortion Ruling (November 1, 2013)

·         Angels of Death (November 4, 2013)

·         Admitting Bias, Part I (August 7, 2014)

·         Admitting Bias, Part II (August 11, 2014)

·         About That Wrong Abortion Ruling (June 30, 2016)

Here’s some background on the Texas case, from my 2016 piece, which applies also to the Louisiana case:

It was a reaction to the Gosnell case, in which an abortion clinic was filthy, grisly, and engaged in late-term and post-birth abortions (i.e., murder of newborns). There were two basic requirements to make sure Gosnell-like conditions wouldn’t risk the lives of the women receiving abortions. One was that clinics would be required to have doctors with admitting privileges at a relatively nearby hospital (the miles were far enough to offer flexibility in all cases). The other was that the facilities would have to meet the same standards as other ambulatory surgical centers.

So let’s be clear: the abortion industry fought all the way to the Supreme Court to avoid securing basic health care for women.

Both states faced similar infractions in their states. Louisiana, however, wrote the legislation carefully considering the requirements the Court decided to make law following the Texas case. While the evidence below was dismissed by the plurality, Justice Gorsuch, in pointing out why legislatures are better suited to deciding these things, shares with us some of what the Louisiana legislature heard:

The legislature heard, too, from affected women and emergency room physicians about clinic doctors’ record of abandoning their patients. One woman testified that, while she was hemorrhaging, her abortion provider told her, “‘You’re on your own. Get out.’” Eventually, the woman went to a hospital where an emergency room physician removed fetal body parts that the abortion provider had left in her body. Another patient who complained of severe pain following her abortion was told simply to go home and lie down. When she decided for herself to go to the emergency room, physicians discovered a tear in her uterus and a large hematoma containing a fetal head. The woman required an emergency hysterectomy. In another case, a clinic physician allowed a patient to bleed for three hours, yet a clinic employee testified that the physician would not let her call 911 because of possible media involvement. In the end, the employee called anyway and emergency room personnel discovered that the woman had a perforated uterus and a needed a hysterectomy. A different physician explained that she routinely treats abortion complications in the emergency room when the physician who performed the abortion lacks admitting privileges. In her experience, that situation “puts a woman’s health at an unnecessary, unacceptable risk that results from a delay of care… and a lack of continuity of care.”

The dissents agree on this: the plaintiffs lack standing. (The dissents, by the way, are all written singularly, although Justice Kavanaugh concurs with most of Justice Alito’s dissent.) The law is in place to protect the health of women who seek abortions—that is the state’s interest. If there is an undue burden placed on women in order to accomplish that interest, then those women are the damaged party and entitled to be plaintiffs against the state. But there are no such women. Nor were there, I might add, in Texas.

This is a third-party complaint—from abortion providers, whose interest is in avoiding regulation on them that could cost them money or inconvenience.

Justice Gorsuch, in his dissent, points out,

The plaintiffs before us are abortion providers. They do not claim a constitutional right to perform that procedure, and no one on the Court contends they hold such a right. Instead, the abortion providers before us seek only to assert the constitutional rights of an undefined, unnamed, indeed unknown, group of women who they hope will be their patients in the future.

The Court’s granting of standing in these circumstances is extraordinary in its wrongness. Justice Alito, in his dissent, does not mince words about the political reason:

And the idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning. Given the apparent conflict of interest, that concept would be rejected out of hand in a case not involving abortion.

There are three Louisiana abortion providers in the suit, claiming to be the only providers available, comprising six doctors. And yet, even as the suit was underway before the Court, two additional providers made themselves known—but their existence was ignored in the plurality’s ruling on the case.

The doctors at these clinics were required to get admitting privileges at nearby hospitals. They claimed they made an effort but couldn’t.

Figure 1 from the SCOTUS ruling, page 32.
The numbers in parentheses are the estimation of abortions
done by that abortion doctor annually. 

As Justice Alito points out in his dissent, the plurality depended on the testimony of people who had an interest in not getting privileges:

[T]he factual finding on which the plurality and THE CHIEF JUSTICE rely—that the Louisiana law would drastically reduce access to abortion in the State—depends on the District Court’s finding that the doctors in question exercised “good faith” in their quest for privileges, but that test is woefully deficient….

[I]t primarily rests on the anecdotal testimony of June Medical’s administrator. Neither the plurality nor THE CHIEF JUSTICE explains why it should be accepted….

[T]he doctors had everything to lose and nothing to gain by obtaining privileges….

If these doctors had secured privileges, that would have tended to defeat the lawsuit….

[T]hey had an incentive to do as little as they thought the District Court would demand, not as much as they would if they stood to benefit from success.

I notice in the Texas case as well, the determination wasn’t on whether the law placed an undue burden on women, but on whether it placed a burden on abortion providers, who would then of their own volition stop providing services. The law didn’t shut down the clinics; it required an improved standard, which the providers could choose to meet or not. It they chose not to, then was it incumbent on the state to go out and help recruit providers who would meet the standard? That seems ludicrous. And yet, here we are.

The Whole Woman’s Health case added a burden on states to do some kind of balancing act that was not required in Casey. Justice Alito suggests,

The Court should remand this case for a new trial under the correct legal standards. The District Court should apply Casey’s “substantial obstacle” test, not the Whole Woman’s Health balancing test. And it should require those challenging Act 620 to demonstrate that the doctors who lack admitting privileges attempted to obtain them with the same zeal they would have exhibited if the Act were in effect and they stood to lose by failing in those efforts.

To summarize,

·         The case should never have come forward, because the plaintiffs lack standing.

·         The dependence on the anomalous Whole Women’s Health balancing standard was incorrect, as it overrode the longer-standing Casey test.

·         The case overlooked the benefits of the law for women’s health, a state interest.

·         The case assumed, without question, as fact that the doctors in question could not meet the requirements, and therefore no doctor could be found who could.

There are more. But what fascinated me was Justice Thomas’s dissent, which was very frank:

The plurality and THE CHIEF JUSTICE ultimately cast aside this jurisdictional barrier to conclude that Louisiana’s law is unconstitutional under our precedents. But those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled. Because we have neither jurisdiction nor constitutional authority to declare Louisiana’s duly enacted law unconstitutional, I respectfully dissent.

And,

But today’s decision is wrong for a far simpler reason: The Constitution does not constrain the States’ ability to regulate or even prohibit abortion. This Court created the right to abortion based on an amorphous, unwritten right to privacy, which it grounded in the “legal fiction” of substantive due process. As the origins of this jurisprudence readily demonstrate, the putative right to abortion is a creation that should be undone.

He’s not finished. He lays out a pertinent history lesson for us—and for his apparently ignorant colleagues in the plurality:

The Court first conceived a free-floating constitutional right to privacy in Griswold v. Connecticut (1965). In that case, the Court declared unconstitutional a state law prohibiting the use of contraceptives, finding that it violated a married couple’s “right of privacy.” The Court explained that this right could be found in the “penumbras” of five different Amendments to the Constitution—the First, Third, Fourth, Fifth, and Ninth. Rather than explain what free speech or the quartering of troops had to do with contraception, the Court simply declared that these rights had created “zones of privacy” with their “penumbras,” which were “formed by emanations from those guarantees that help give them life and substance.” This reasoning is as mystifying as it is baseless….

Just eight years later, the Court utilized its newfound power in Roe v. Wade (1973). There, the Court struck down a Texas law restricting abortion as a violation of a woman’s constitutional “right of privacy,” which it grounded in the “concept of personal liberty” purportedly protected by the Due Process Clause of the Fourteenth Amendment. The Court began its legal analysis by openly acknowledging that the Constitution’s text does not “mention any right of privacy.” The Court nevertheless concluded that it need not bother with our founding document’s text, because the Court’s prior decisions—chief among them Griswold—had already divined such a right from constitutional penumbras. Without any legal explanation, the Court simply concluded that this unwritten right to privacy was “broad enough to encompass a woman’s [abortion] decision.”…

In 1868, when the Fourteenth Amendment was ratified, a majority of the States and numerous Territories had laws on the books that limited (and in many cases nearly prohibited) abortion. It would no doubt shock the public at that time to learn that one of the new constitutional Amendments contained hidden within the interstices of its text a right to abortion. The fact that it took this Court over a century to find that right all but proves that it was more than hidden—it simply was not (and is not) there.

You go, Justice Thomas!

Justice Clarence Thomas
image: J. Scott Applewhite/AP Photo, found here

In the Texas platform this year, our district is proposing a plank to simply outlaw abortion, in one single bill. No skirting around limits that, on their face, concede the “right” to murder some innocent life under some circumstances. We’ll see how that goes at the convention. But it’s time to stop compromising with evil and boldly go where we should have gone all along.

I’ve already written too much. But I want to add with this opening statement from Justice Gorsuch’s dissent:

The judicial power is constrained by an array of rules. Rules about the deference due the legislative process, the standing of the parties before us, the use of facial challenges to invalidate democratically enacted statutes, and the award of prospective relief. Still more rules seek to ensure that any legal tests judges may devise are capable of neutral and principled administration. Individually, these rules may seem prosaic. But, collectively, they help keep us in our constitutionally assigned lane, sure that we are in the business of saying what the law is, not what we wish it to be.

Today’s decision doesn’t just overlook one of these rules. It overlooks one after another. And it does so in a case touching on one of the most controversial topics in contemporary politics and law, exactly the context where this Court should be leaning most heavily on the rules of the judicial process. In truth, Roe v. Wade (1973), is not even at issue here. The real question we face concerns our willingness to follow the traditional constraints of the judicial process when a case touching on abortion enters the courtroom.

Ordinary Meaning

Supreme Court building in Washington, DC
I took this photo during our trip there in 2015.

It’s June, the season for Supreme Court rulings, because their annual term ends June 30^th. I’m writing today about the Bostock v. Clayton County case. But this morning another ruling came out—another bad ruling.

We’re supposed to have 5 of the 9 justices who form their opinions based strictly on the law as written, since they were appointed by Republican presidents. Apparently that isn’t so. Which shows why there is danger in allowing the Supreme Court to have so much power.

The Constitution is pretty clear. Article III refers to the Judicial Branch. Section 1 covers judicial service—who can serve, under what conditions. Section 2 covers which types of cases are handled by the federal judiciary. Section 3 describes treason against the United States and how that will be handled.

That covers the entirety of Article III. It doesn’t say that the court gets to determine whether there are hidden meanings, or penumbras of meaning, in the Constitution. It doesn’t say it’s up to the courts to determine when life begins. It doesn’t say it’s up to the courts to change the definition of marriage from what it’s been for several thousand years. It doesn’t say the courts have the right to rewrite a badly written law to make it better, or better able to accomplish a desired outcome.

Surprisingly, it doesn’t even say it is up to the Supreme Court to determine whether a law is constitutional. That didn’t become a thing until Marbury v. Madison, in 1803.

In fact Thomas Jefferson said this:

[T]he opinion which gives to the judges the right to decide what laws are constitutional and what not... would make the judiciary a despotic branch.... [T]he germ of dissolution of our federal government is... the federal Judiciary... working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.… They are construing our Constitution from a co-ordination of a general and special government to a general and supreme one alone.

In Federalist 78 Alexander Hamilton describes the judicial branch as the weakest of the three branches, because it has "no influence over either the sword or the purse…. It may truly be said to have neither FORCE nor WILL, but merely judgment."

And yet here we are, with these nine unelected persons wearing black robes deciding things that affect our daily lives.

Today’s bad ruling, in short, said that, while there is full agreement that Obama’s executive order concerning DACA (refusing to enforce the law when it comes to a class of individuals the president wanted to favor) was illegal, and there is full agreement that President Trump has the power to rescind that illegal executive order, the Supreme Court is nevertheless ruling that the Trump administration didn’t fully explain their reasoning, or perhaps with the right tone, so the Court is ordering the President to start over and do it the way the Court says—in the meantime letting the illegal executive order stand. Justice Roberts joined the anti-constitutionalists on the Court in that ruling.

Justice Neil Gorsuch wrote the opinion
for Bostock v. Clayton County, GA
image from Wikipedia

The one we’re talking about today, Bostock v. Clayton County, Georgia, concerns the "ordinary meaning" of Title VII, written in 1964, concerning categories of discrimination in employment. The 6-3 Court opinion was written by “textualist” Gorsuch. What a disappointment! 

There are three cases included in the decision, all related to long-time employees being fired for being either homosexual or transgender.

That they were fired at least in part for these reasons is not in dispute. And I am not going to spend much time on the desirability of the outcome of the case; there are multiple states where laws have been written disallowing firing based on these reasons.

The question is, simply, what does Title VII say? As Justice Gorsuch, writing for the majority, says in the opening of his opinion:

This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the President. If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people’s representatives. And we would deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations.

With this in mind, our task is clear. 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[i].” 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.

We get agreement with that from Justice Kavanaugh, with the additional rationale for this practice:

Judges adhere to ordinary meaning for two main reasons: rule of law and democratic accountability. A society governed by the rule of law must have laws that are known and understandable to the citizenry. And judicial adherence to ordinary meaning facilitates the democratic accountability of America’s elected representatives for the laws they enact. Citizens and legislators must be able to ascertain the law by reading the words of the statute. Both the rule of law and democratic accountability badly suffer when a court adopts a hidden or obscure interpretation of the law, and not its ordinary meaning.

So we think at least all the “conservative” justices understand the process. Did the ordinary public meaning, in 1964, of discrimination because of an individual’s sex mean the same thing as discrimination because of a person’s sexual orientation or sexual identity? Since the answer to that is clearly no, and is still no today, as Gorsuch himself admits, and as is pointed out with masterful clarity in the dissents by Justices Alito, and Kavanaugh’s, you expect certain things.

You expect the Court to say, since the law was not written to include these additional concepts, and since Congress has had ample opportunities to change the law or to show that it was interpreting it differently from the ordinary public meaning when written, it is not in the power of the Court to change the clear meaning, regardless of personally desired outcomes.

Instead, we get a tortured invention of what the text “says.”

Justice Gorsuch says,

By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.

Let’s set aside the transgender portion for a moment. Gorsuch is saying an employer is only against the man’s attraction to men because he is a man, because you’re fine with a woman being attracted to men—so the difference is their sex.

Protesters on this case October 8, 2019
image from Wikipedia

Both Justices Alito (with Justice Thomas joining in his dissent) and Kavanaugh show the short-sightedness of that assumption.

Justice Alito does it graphically, strikethroughs included:

In an effort to prove its point, the Court carefully includes in its example just two employees, a homosexual man and a heterosexual woman, but suppose we add two more individuals, a woman who is attracted to women and a man who is attracted to women. (A large employer will likely have applicants and employees who fall into all four categories, and a small employer can potentially have all four as well.) We now have the four exemplars listed below, with the discharged employees crossed out:

Man attracted to men

Woman attracted to men

Woman attracted to women

Man attracted to women

The discharged employees have one thing in common. It is not biological sex, attraction to men, or attraction to women. It is attraction to members of their own sex—in a word, sexual orientation. And that, we can infer, is the employer’s real motive.

Justice Kavanaugh illustrates with a hypothetical:

Consider the employer who has four employees but must fire two of them for financial reasons. Suppose the four employees are a straight man, a straight woman, a gay man, and a lesbian. The employer with animosity against women (animosity based on sex) will fire the two women. The employer with animosity against gays (animosity based on sexual orientation) will fire the gay man and the lesbian. Those are two distinct harms caused by two distinct biases that have two different outcomes. To treat one as a form of the other—as the majority opinion does—misapprehends common language, human psychology, and real life.

Justice Gorsuch claims that it is impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, so sexual orientation is contained within the idea of “on the basis of sex.” The dissenting justices quickly and easily point out the fallacy.

Justice Alito writes:

If “sex” in Title VII means biologically male or female, then discrimination because of sex means discrimination because the person in question is biologically male or biologically female, not because that person is sexually attracted to members of the same sex or identifies as a member of a particular gender.

And,

Something that is not sex discrimination cannot be converted into sex discrimination by slapping on that label. So the Court cannot prove its point simply by labeling the employer’s objection as “attract[ion] to men.” Rather, the Court needs to show that its label is the correct one.

Justice Alito calls the Court’s decision arrogant, because it claims that apparently everyone else since 1964 was too stupid to see the “ordinary public meaning” written right there in the law.

Justice Alito attacks the stupidity charge with a verbal eyeroll:

The Court seemingly has the same opinion about our colleagues on the Courts of Appeals, because until 2017, every single Court of Appeals to consider the question interpreted Title VII’s prohibition against sex discrimination to mean discrimination on the basis of biological sex[ii]. And for good measure, the Court’s conclusion that Title VII unambiguously reaches discrimination on the basis of sexual orientation and gender identity necessarily means that the EEOC failed to see the obvious for the first 48 years after Title VII became law[iii]. Day in and day out, the Commission enforced Title VII but did not grasp what discrimination “because of… sex” unambiguously means[iv].

Justice Kavanaugh puts numbers to it:

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.

In the face of that kind of clarity, the Court ought to be able to read the law as written and rule as written—and leave any desired changes to the Legislative Branch to accomplish.

One advantage to having the Legislature do their own work is that, theoretically, they have the opportunity to debate, to explore different viewpoints on an issue, and to address possible consequences of any legislation. Justice Alito points out several effects this Court does not address, and offers comments for each. Here is his list:

·         “[B]athrooms, locker rooms, [and other things] of [that] kind.”

·         Women’s sports.

·         Housing.

·         Employment by religious organizations.

·         Healthcare.

·         Freedom of speech.

·         Constitutional claims.

One of my key concerns is religious freedom. Justice Alito says this about the employment by religious organizations question:

This problem is perhaps most acute when it comes to the employment of teachers. A school’s standards for its faculty “communicate a particular way of life to its students,” and a “violation by the faculty of those precepts” may undermine the school’s “moral teaching[v].” Thus, if a religious school teaches that sex outside marriage and sex reassignment procedures are immoral, the message may be lost if the school employs a teacher who is in a same-sex relationship or has undergone or is undergoing sex reassignment. Yet today’s decision may lead to Title VII claims by such teachers and applicants for employment.

I find Justice Gorsuch’s assertion that “An individual’s homosexuality or transgender status is not relevant to employment decisions” offensive. Who are these justices that they get to decide what is or is not relevant to an employer’s decision?

Particularly in a religious school setting the relevance is obvious. But it is also relevant for a religious person who is an employer and may not want a person involved in a particular behavior to represent his business. Suppose such an employer does not employ persons who engage in sex outside of marriage, but today’s Court rules that he must employ such persons if they engage in homosexual sex. Why should the Court have the power to dismiss the relevance of sin to an employer in his hiring practices? At what point do they have the power to decide that honesty is irrelevant, or theft, simply because these are moral considerations?

Consider the transgender case involved in the decision. A family-owned funeral home company fired a biologically male employee who informed them that, after returning from an upcoming vacation time, he would be living and working full-time as a woman. Is that relevant to the employer? To some it might not be, especially if the employee is good at computer coding or at some technical job that doesn’t involve interfacing with the public. But a funeral home is a particular type of business. It deals with people at a sensitive and emotional time. It offers care and comfort. The owner of such a business might sense that forcing discomfort on their clients would go against their purpose and the image they are trying to present. But Justice Gorsuch seems to know, offhand, that the employee’s transgender status is irrelevant to the funeral home’s hiring decisions.

While it may not always be the case, the appearance of many transgender individuals is jarring, confusing, and discomforting. What might bother the business owner is not that a biological male is doing something a biological female could do without a problem, as the Court’s opinion asserts; it is that the biological male will still be a biological male (as sex is defined in the statute) but will be forcing the employer—as well as its sensitive clients—to treat that biological male as the sex that he is not. A biological female dressing as a female is not asking anything discomfiting of either employer or client.

Here we face one of the underlying issues of Title VII in the first place, something libertarians have pointed out all along: A person’s business is their property, and they are entitled to do what they want with that property, including whom they hire and whom they serve. Title VII overrides their natural right.

What if this law had never been enacted? I don’t know. I want to think that we could trust the American people to make choices that would not encourage a business to continue engaging in actual bigoted activities. Society was moving naturally in that direction in most areas, and pressure would have been felt, I think, in those Southern Democrat areas that continued racist practices, for example. Such pressure could have brought about the wanted changes—organically and thoroughly in a way that coercion cannot.

But I could be wrong. I did not live where Jim Crow laws existed. I’ve often been shocked to read of things that were thought normal or acceptable by otherwise decent Americans in those places. Maybe something actually needed to be done by legislation. But the cost of doing it by the coercion of law is something we’re seeing now: no trust that people’s hearts have changed.

Doing the statutory change enacted by the Court in this case is not going to engender better feelings. It is likely to do the opposite—which is what happens any time the government—or any of its branches— steps beyond its proper role.

Look especially to religious freedom. Justice Kennedy tried to say, “That’s not going to happen,” when he ruled as he did in Obergefell. But since that ruling there has been an all-out legal assault on religious people and organizations that don’t fall in line.

Bad Supreme Court rulings have great power to harm Americans. And the remedy would be so simple: justices should read the ordinary meaning of the law.

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[i] I am including the citations as written: §2000e–2(a)(1).

[ii] See Part III–C, infra.

[iii] The EEOC first held that “discrimination against a transgender individual because that person is transgender” violates Title VII in 2012 in Macy v. Holder, 2012 WL 1435995, *11 (Apr. 20, 2012), though it earlier advanced that position in an amicus brief in Federal District Court in 2011, ibid., n. 16. It did not hold that discrimination on the basis of sexual orientation violated Title VII until 2015. See Baldwin v. Foxx, 2015 WL 4397641 (July 15, 2015).

[iv] See Part III–C, infra.

[v] McConnell, Academic Freedom in Religious Colleges and Universities, 53 Law & Contemp. Prob. 303, 322 (1990).

Unique Markets

During last week’s Supreme Court oral arguments concerning Obamacare, last Tuesday the discussion covered why health insurance would be a unique market and therefore in need of government intervention. So we’ve been discussing this definition at home the last few days. And my son Political Sphere, as an exercise, took the definition for unique market and applied it to yet another “unique” market. Let’s lay some groundwork for the definition first. Page numbers refer to the official transcript.

Verrilli (the government lawyer defending Obamacare) says healthcare insurance unique because it is characterized by the fact that virtually everybody “is either in that market or will be in that market, and the distinguishing feature of that is that they cannot—people cannot generally control when they enter that market or what they need when they enter that market (p. 5).

Justice Roberts answers:

Well, the same, it seems to me, would be true, say, for the market in emergency services: police, fire, ambulance, roadside assistance, whatever.

You don’t know when you’re going to need it; you’re not sure that you will….

So, can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? (pp. 5-6).

Verrilli responds that the difference is that insurance is a market, which isn’t a particularly helpful distinction. So Justice Alito adds another analogy:

Do you think there is a market for burial services?.... Suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and said: You know what you’re doing? You are financing your burial services right now because eventually you’re going to die, and somebody is going to have to pay for it, and if you don’t have burial insurance and you haven’t saved money to pay for it, you’re going to shift that cost to somebody else. (pp. 7-8)

Justice Scalia helps refine the definition by asking about food: “Could you define the market—everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli” (p. 13).

Verrilli responds that, while everyone participates, “it is not a market in which your participation is often unpredictable and often involuntary” (p. 13).

A couple of pages down, Verrilli responds overall to these other markets: Verrilli (p. 15-16):

I would have thought that your answer—can the government, in fact, require you to buy cell phones or buy burial that, if we propose comparable situations, if we have, for example, a uniform United States system of paying for every burial such as Medicare Burial, Medicaid Burial, Ship Burial, ERISA Burial and Emergency Burial beside the side of the road, and Congress wanted to rationalize that system, wouldn’t the answer be, yes, of course, they could (pp. 15-16).

So, in sum, the health care market is unique because

·         Everyone participates at some point.

·         Timing of need is not necessarily predictable.

·         There is a primary system of paying for the product/service, which is therefore subject to commerce regulation.

·         There are free-riders who affect the cost for participants in the market.

If healthcare insurance is unique, then it is the only market that meets the criteria, so we wouldn’t have to worry about encroachment of government in other markets. But Verrilli already admitted other markets could be construed to also be unique.

So, here is Political Sphere’s application  of the definition on yet another market: housing.

Does the housing market have free-riders? Absolutely, in more numerous ways than the health care market. You have various versions of squatter laws; you have rent controls limiting price increases on those already renting; you have delinquencies and defaults on mortgages. And laws generally make it a long process to kick out someone that has current residence in a property.

Does almost everyone use it at some point in their life? Again this is an obvious yes, perhaps even more true than health care, because even people who, by choice, live on the streets often lived in a house once.

And because these two items are true, what can be mandated? The payment mechanism for the majority of housing (all housing, not just private residences) is to have a mortgage. So by this argument, if the Congress can mandate that everyone has health insurance to pay for their health care, then it only stands to reason that Congress can mandate everyone have a mortgage to pay for their housing.

Since there are four items on the list, let me add, just to be thorough, that choice about needing shelter can also be somewhat unpredictable, even for the homeless; severe weather makes the need urgent, and weather, while seasonable, can be unpredictable. But since ancient times, shelter has been considered a basic need, up there with air, water, food, and clothing. You can choose to go without for a while, but when the blizzard hits, you might suddenly find camping under open skies untenable.

Unique still means one of a kind, unike all others, right? As Inigio Montoya would say, “You keep using that word. I do not think it means what you think it means.”

Eventually, Justice Kennedy pointed out our mistrust of the “unique market” argument: “And the government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique” (p. 104).