Mr Dooley, right again

Wow. I often worry that today’s political climate and my excessive use of social media have made me too much of a cynic. But this take is too cynical even for me. I shudder to think what you might say about Justice Kavanaugh’s paean to gay rights at the end of his dissent.

I would say that in Gorsuch’s case, he doesn’t do politics with a veneer of legalese. He has a theory of jurisprudence and follows it. This is nowhere near the first time that his decisions mystify those who see the court decisions only in terms of left-right politics (look at US v. Quartavious Davis, Gamble v. US, and Herrera v. Wyoming). So I was not at all surprised to see Gorsuch vote the way he did in the present case or for him to write such a strong, straightforward majority opinion that showed little deference to the senior justices on the other side of the vote.

I agree with you & Mr. Dooley, and I think this decision (and others that are coming down now) is part of Roberts’ strategy to avoid the Democrats packing the Court, which would absolutely be on the table in 2021 if the right wing Justices continued to vote as a solid block on all issues. I think court-packing (ahem, “expanding the Court”) is the worst case scenario as far as Roberts is concerned, so he’s making a big push to carve out a “centrist” block of himself & Gorsuch.

Roberts’ strategy will only work if the Court has a LOT fewer 5-4 decisions, and many of them making the right wing cry–like this one. Sometimes he & Gorsuch will join the hard-right block, too, but not consistently.

“The plague of Moses
On both your houses
says Mr Dooley Ooley Ooley Oo”
Heard on English Radio 3 in 1978, never forgotten.

Er, the Supreme Court does not follow the illiction returns; if it did, we would have seen a much sharper swing to the right than we did after 1980, though Bowers v. Hardwick was bad enough. What the SC does do is orient itself with reference to the landmark moments of U.S. history. Neither Roberts nor any other conservative justice (the late and unlamented Scalia being a possible exception) wants to bring the SC close to a Dred Scott v. Sandford moment after which the prestige of the SC sunk to its lowest point in history and also provoked a more active and radical abolitionist movement. Nor do they want to make any decision that might make SC expansion by a Democratic administration a possible outcome, as was proposed in Roosevelt’s New Deal; this may also have been an underlying motive in the SC’s refusal to declare the ACA unconstitutional, if not the main motive.

I’m no SC expert, but it strikes me that the mission of the SC is to make U.S. laws and jurisprudence favorable for corporations (i.e., neoliberalism), but not to trigger any cultural or racial conflict that could create a truly drastic political turnover as happened in 1860-65. Which may mean that the Trump right will have to look for nominees that are much worse than Gorsuch and Kavanaugh.

I think that this thread is rapidly getting too optimistic. The Supreme Court might follow Congress leftward on social matters. But follow the money. Has this Court done anything to hobble the Federalists’ paymasters, except perhaps Roberts’ vote upholding the ACA?

He called his approach to judging pragmatic. His critics called it lawless. “I pay very little attention to legal rules, statutes, constitutional provisions,” Judge Posner said. “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”

The next thing, he said, was to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. “And the answer is that’s actually rarely the case,” he said. “When you have a Supreme Court case or something similar, they’re often extremely easy to get around.”

https://www.nytimes.com/2017/09/11/us/politics/judge-richard-posner-retirement.html

Chancellor Kent of New York State, a great legal authority, in a charming burst of frankness once wrote: ‘I saw where justice lay, and the moral issue decided the court half the time. I then sat down to search the authorities. … I might once in a while be embarrased by a technical rule, but I almost always found principles suited to my view of the case.’ The learned judge used his best judgement, came to a decision, and then ransacked the fat books for authority to support him. He almost always found it. I would be willing to take his decision, if he were a good judge, without the ornament of citations. The decision constitutes the reality of legal machinery; the citations contribute to the magic.

Stuart Chase, [i]The Tyranny Of Words[/i], 1938

After declaring the outcome of one case [Chief Justice John] Marshall turned to him [Justice Joseph Story] and said, “Now, Story, that is the law; you find the precedents for it.”

http://www.historynet.com/the-9-greatest-supreme-court-justices.htm

Richard Posner’s concurring opinion in the Seventh Circuit in the Hively case (which I just glanced at, thanks to J-D’s link above to the NYT article) would seem to be a more direct and, frankly, honest approach to what’s going on here than the Gorsuch majority opinion in the case that was just decided. Posner says it’s “judicial interpretive updating”: Title VII didn’t cover sexual orientation in 1964, but the same language does now, in 2020, because in the intervening decades facts and esp attitudes have changed a lot. The context is different. Just as, Posner points out, the language of the Sherman Antitrust Act is interpreted differently now than it was in 1890.

Alito would say that is legislating, but it’s not: there’s a difference, albeit perhaps a subtle one. And since Alito was going to charge that the SCOTUS majority was legislating regardless of what reasoning it used, it wd have been more direct for the majority to say: look, we’re updating Title VII to conform to today’s world. But Gorsuch wouldn’t do that, because it doesn’t conform to his theory, such as it is, of statutory interpretation. And, perhaps significantly, not a single one of the so-called liberal bloc of Justices wrote a concurrence along the Posner lines. Instead, they all signed on to the Gorsuch opinion, even though in the privacy of their chambers I wdn’t be all that surprised if at least one or two of them agreed w the Posner approach.

Quite predictably Rod Dreher provides a template for the predictable right-wing “sky is falling” religious response to this decision. Note his love affair with the uber obnoxious Alliance Defending “Freedom” outfit.
The Australian readers of this sight may or may not know that Tony Abbott gave two lectures/addresses to this outfit when he was in America.

@12 Unearned and ill-deserved optimism is the curse of the American centre-left. Remember the last Congressional elections? A slight swing to the Democrats, entirely what one would expect at mid-terms (especially during the reign of a historically unpopular President) was greeted with the fervour more normally associated with the release of Nelson Mandela or the fall of the Berlin Wall.

The social conservatives are only the camouflage. The real goals of the American Right are, and always have been, primarily financial. They are perfectly prepare to make a strategic retreat in order to continue to fight together for the real prize. Indeed, this was the point of the OP.

“The Court’s opinion is like a pirate ship” wrote Justice Alito. Arrgh!

Garret Epps, a professor of constitutional law, has a good piece at the Atlantic.

Goresuch’s reliance on textualism tempts me to reprise one of Art Hoppe’s endless running jokes and accuse him of being a textual deviate, but I would never do that.

JHW @13

I have spent all the time on this that I am going to spend, so I guess for purposes of this thread, you win.

However, I would invite anyone who, unlike me, has time to read every single word of all three opinions (Gorsuch majority, Alito dissent, Kavanaugh dissent) to do so and then to arrive at his or her own view of what is really going on here. I’ve already expressed my view on that in several comments here (see esp the one on Posner) and that’s all I’m going to say on the matter.

I’ve written many a legal opinion and have found textualism to be little constraint, and an excellent rhetorical device. I can only recall one time I was handcuffed by the text.

Of course, this depends on what you are interpreting. Most of the Uniform Commercial Code, for example, was designed to be “judge-proof,” and pretty much works. But then again, few judges think they know more about secured transactions than the Uniform Law Commissioners. And the UCC is updated every generation or so. (And no–I was never handcuffed by the UCC.)

There is only one canon of statutory interpretation that I really respect: the notion that words have meaning. But respectfulness does not imply submission.

What struck me most about the decision was that – even as it references homosexuality and transsexuals – what is being struck down is not discriminating against e.g. someone’s identity as a homosexual or behavior that is defined as homosexual or heterosexual. What’s being struck down is behaviors (observed, professed, or implied) with regard to someone’s assigned sex that would be acceptable for someone of a different assigned set had that behavior. E.g., being fired for being a male homosexual isn’t what’s being addressed; it’s firing someone assigned male sex for having sex with men when people assigned female sex are not fired for having sex with men

This is completely because of the nature of the law that was before the court. (It’s not, say, a challenge under the “equal protection” clause of the constitution, though it’s not clear how that would work here against private actors.) Title VII of the Civil Rights Act of 1964 makes discrimination “on the basis of sex” illegal in a number of areas. The question here is whether that bit of legal text applies to discrimination against gay people, trans people, etc. If it does, it does so for the ways suggested in the decision. It doesn’t seem plausible that someone’s mere status as gay or trans is a matter of sex, hence this approach. Especially in cases where fairly clear statutes are involved, courts, even the US Supreme Court, really do tend to rule in ways that stick closely to plausible interpretations of the legal materials in front of them. That was done here, and it’s no surprise. It would have been a pretty lawless ruling to make the more general anti discrimination claim in this case, as it would have not had any clear basis in the text at issue.

I hope that the next time the Democratic Party controls all levers of the US federal government that it goes much further in instituting serious changes. The Democrats always try to play nice with the Republicans, not understanding or perhaps in denial of the fact that the Republicans became authoritarians in the wake of Goldwater and seek to block and destroy improvements in society to gain political advantage while losing demographics. Two short but rather stunning tomes that prove this are Authoritarianism and Polarization in American Politics by Hetherington & Weiler (2009) and It’s Even Worse Than It Looks by Mann & Ornstein, revised to It’s Even Worse Than It Was (2016).

We will no doubt see plenty of new book-length post mortems in the wake of US President Dumbbell J. Swamp (some of them even worth reading) since this interloper inserted himself into the emotional frozenness and intellectual incompetence that characterizes the right wing, characterizes the right wing really around the world, and in the process revealed its essential divorce from reality until all but the dimmest bulbs had to take notice. I hope that one of these new political psychology books is entitled, “It Takes a Crook: Particularly, a Psychopathic Short-Sighted Crook.”

Before someone jumps in here to claim that the Democrats are just as bad as the Republicans — no, they are not. ‘Tis true, the Democratic Party is neoliberal and they don’t know what they are doing half the time. But note that there is no help from the left on this, since the left has not devised an alternative economic theory nor an easy set of policy prescriptions which the public at large can comprehend, remember, and vote for. The main failure is on the left and among Democratic funders.

The world wants to go left but the left isn’t helping. For example the left places a good deal of hope upon reviving “labor movement”. This increasingly looks like misdirection. We are in a post-scarcity era where we should all do less work, and financial sector profits are increasingly divorced from the production of real goods and services thus proving that the privileged can get copious amounts of money printed for their own ends, yet the left wants to waste time by further inculcating the scarcity psychology of money on everybody, by an argument over labor incomes and easier credit?

In comments above we see some further examples of tepid thinking. Stacking the court or recalling judges would be a waste of time since it’s only temporary and therefore fairly useless. What we need are a handful of new constitutional amendments so it doesn’t matter who sits on SCOTUS: 1. Any candidate for US President must release the last ten years of tax returns. 2. Executive branch inspectors general shall not be removed but by Congressional approval. 3. Not complying with Congressional subpoenas is an impeachable offense. 4. In the case of House impeachment, “executive privilege” is automatically voided. 5. If a President is removed from office, all of his or her pardons are automatically voided and the miscreant returned to jail. Further: 6,7,8, etc. Pass ’em through Congress and send them to the states for ratification.

Romania evidently just followed Hungary’s example – contra Trump.

https://www.nytimes.com/2020/05/28/world/europe/hungary-transgender-law.html

So, there’z that, too.

What we need are a handful of new constitutional amendments so it doesn’t matter who sits on SCOTUS

I’ve said this before, but the underlying problem is that the US continued as an apartheid state after the failure of reconstruction, and this required a certain approach to jurisprudence that, um, enabled the written text of constitution and statute to be ignored. And this body of “interpretation” was never fixed after the US formally ceased being an apartheid state.

Obviously this isn’t something you can fix by passing new laws and new constitutional bits. Impeaching Alito-et-al for ignoring the actual text would be a step towards fixing the problem; failing that, some sort of formal break in legal continuity like [hopefully] the french did. Failing that you’re left with the other less-pleasant ways to get a break in legal continuity.

ph @33 “On the economic front, Trump has no opposition.”

Say what?

Are you seeking clarification from ph?

Has history taught us nothing?

ph@34
”The arguments which count are economic and cultural. On both these fronts Trump is miles ahead”.

Say what?
I say –
And really? –
Why are obvious – kind of ”intelligent” people –
STILL? – discuss ”the STUPID”
in such a still – kind of intelligent way?

AND why don’t we discuss that ”Finland is a beautiful city”?

@37 I just checked. If Trump succeeds in opening up the economy without a major uptick in COVID deaths he wins. Globalists on Wall Street would love a Biden win. Ditto big tech.

The incumbent at his lowest point in the polls versus Biden. Indeed, Biden could maintain fifteen-point lead as long he stays out of sight. That calculus changes dramatically, however, once Biden has to come out of hiding and go out on the stump.

Count on Biden failing to finish sentences. He’s certain to threaten or physically accost voters once more as he did on camera. Ditto forgetting who he’s talking to. And that’s before he’s forced to stand on a stage toe-to-toe with Orange Man Bad. Trump, as Bernie sharply observed, will tear him apart. And then there’s Joe’s appalling record.

Remember why Dems changed the rules to get Bloomberg onto the debate stage? Biden wasn’t viable. When Mike turned out to be a stiff on stage, out came the cash – everyone dropped out to allow dead-candidate-walking to assume the mantle of nominee in waiting.

Even if Facebook and Twitter succeed in gluing Trump’s mouth shut, he’ll likely still win.

Orange@29:
I wouldn’t worry. Sexual harassment has been illegal for decades no matter who does it, despite the logical possibility of an equal-opportunity harasser not discriminating on the basis of sex. Courts can chop logic with the best of them, but only do so when they feel like it. And Bostock tacitly instruct lower courts not to feel like it.

Orange Watch @29
I’ve now read more of the majority opinion than I did when commenting earlier, and I think you are not correct about what the holding in the case is.

On p.30 of the online majority opinion, Gorsuch writes that “today’s holding [is] that employers are prohibited from firing employees on the basis of homosexuality or transgender status….” Why? Because in firing someone for being homosexual or transgender, an employer, according to the majority opinion, is necessarily firing that person in part because of his/her/their sex. Biological sex is one “but-for” cause of the firing. So in Bostock’s case he was fired for being a man who is attracted to men, which means he was fired partly for being a man, which means he was fired “because of sex” within the meaning of Title VII. That’s the majority’s approach as I read it.

So contrary to your statement @29 that “e.g., being fired for being a male homosexual isn’t what’s being addressed,” that is exactly what’s being addressed, and prohibited, by the majority opinion.

@37 ”I just checked”.

and found out:
”that the atmosphere created in colleges over the last decade is not a petrie dish for mental illnesses of various kinds – for professors, as much as students. Those with strong social networks and belief systems can normally survive.

Moreover, Trump has subjected the public to four years of constant crisis ‘we’re living in a state of fascism’; ‘climate change will kill us all’; ‘silence is violence’; ‘our president is a Russian agent’; ‘only Trump can save us’; ‘ten-year olds are guilty of systemic racism’ with the result that Trumpers who imbibe this poison feel understandably stressed and unhappy.

Rather than question the veracity of these claims, in many cases Trumpers blithely and uncritically parrot these questionable and highly contentious assertions as fact, and ‘settled’ science. Tumpers who do dissent too often understand they’ll be punished, shamed, at the very least.

Dissent is regarded as proof of Trumpism and/or Bolton illness.

@47
”The Dems obviously represent Big Tech, most (not all) of the media especially of course the ‘liberal’ media, the ‘intelligence’ services (most of them)

AND MOST important in ”Pandemic Times” – and World Wide Protest against Racism the Dems very obviously represent the Belief in Science and Racial Equality.

Right?

AND that’s where ”the opposition to Trump from these sources” is NOT mainly performative BUT very, very serious.

Right?

AND I want to thank you – that you made this utmost important point for the difference between the Science Denier and Racist Trump and his Republicans – on the one side – and Democrats so obvious.
As the Virus doesn’t care if Trump ”just represents a different ‘wing’ of the establishment.”

@49
Rightly or wrongly, a lot of people now thing that Trump will lose the next election (you know….like they did the last time). So money buys influence, and so a lot of people want to be seen to be donating to the Biden ‘campaign’, if you want to call it that, so they will have control of the incoming administration (something similar happened in the last election, when the big money held back until the last few weeks before the election…suddenly the taps were turned on and a gigantic influx of money came in for Trump, helping to push him over the edge).

So…we shall see. If it suddenly looks likely that Trump will win again come November, you will suddenly find Trump gets a lot of money, but it will be at the last minute.

More interesting is to look at who paid for (and who, therefore, controls) Trump the last time.

‘For someone who repeatedly berated Wall Street during his campaign, President Trump received a lot of inauguration help from its inhabitants. The securities and investment industry contributed the greatest chunk to Trump’s inaugural festivities, $14.3 million, or about 13 percent of all donations. To compare, Obama received $4.6 million from Wall Street in 2009 and $3 million in 2013….

, Trump was most popular with industries linked to his business empire, with real estate ($9 million), casinos/gambling ($7.8 million from just 11 donors, most of which came from casino magnate Sheldon Adelson) and recreation ($7.2 million) following Wall Street. The latter two did not appear on Obama’s top 10 lists at all.

The oil and gas and mining industries combined for 10 percent of the committee’s total haul, with just 60 donors giving $10.7 million. Companies such as Murray Energy ($300,000), Consol Energy ($150,000) and Exxon Mobil ($500,000) are seeing their investments pay off: Trump is already weakening or killing regulations to which the industry has objected.

His inaugural committee was also popular with the tobacco industry, earned $1 million from Reynolds through a subsidiary, while Altria pitched in $500,000 and Benett Lebow, chairman of Vector Group, gave $300,000. And private prisons, which are hoping to get rich amid Trump’s immigration crackdown, showed their loyalty as well: CCA of Tennessee, or CoreCivic, and GEO Corrections Holding each gave $250,000.’

https://www.opensecrets.org/news/2017/05/biggest-share-of-trump-inaugural/

OK so its inaugural funding, but it’s still interesting. It’s also precisely what you would expect. As I have said, in a democracy, like Finland, it makes sense to ask what section of the electorate supported the winning candidate. In a plutocratic oligarchy like the United States, one looks at which section of business backed the winning candidate. For Trump, it’s what one would expect, Wall Street, Real Estate, Big Oil and Gas, Big Tobacco, the Prison Industry etc. He has has huge support amongst cops and the Armed Forces (not the Generals, the ones who actually do the fighting).

As I say, don’t get misled by things at this early stage: E.E. Cumming’s ‘mostpeople’ (all one word) have decided that Biden will win. If Trump stages a late surge, that will change.

@50

‘the Dems very obviously represent the Belief in Science and Racial Equality.’

This is some strange new use of the word ‘obviously’ I was not previously aware of.