Mr Dooley, right again

by John Quiggin on June 16, 2020

The decision of the US Supreme Court, that the Civil Rights Act prohibits discrimination based on sexual orientation and gender identity was entirely predictable, based on the century old observation of the fictional Irish-American bartender Mr Dooley observed “The Soopreme Court follows the illiction returns.” As I said in 2018

At most, the court constitutes a veto point, able to block legislation that can be represented as violating constitutional protections. But most of the progressive agenda is clearly within the power of the legislature and executive. If the Democrats win the next few elections, the Roberts Court will be as much of a disappointment to its creators as the Warren Court in the 1960s

A decision restricting the interpretation of the Civil Rights Act would have had huge political costs for the Republican majority, without achieving any long term results. In the quite likely event that the Democrats gained control of both the Presidency and Congress sometime in the next few years, the decision would probably have prompted a new and even broader Civil Rights Act, as well as a potential trigger for expanding the court to create a Democratic majority. Even if this didn’t happen, the remaining state-level restrictions would have been chipped away in a series of losing campaigns for the right. From Roberts’ viewpoint the key goal has to be to keep bringing down decisions like Citizens United, which entrench Republican advantages. As for Gorsuch, the advantages are even clearer. His appointment is widely regarded as illegitimate, and a decision showing that “textualism” means “rightwing interpretations of the text” would have entrenched that. As it is, he can present himself as someone who, while conservative, is not a partisan hack.

It will be interesting to see how this plays out on the right. Roughly speaking, I’d expect the hard neoliberals to welcome the fact that this unwinnable fight is over. By contrast, the culture warriors who back Trump will be furious. Apparently, many are expecting a sweeping win in November, in which case they could amend the law.

{ 52 comments }

1

John Quiggin 06.16.20 at 10:32 am

As a citizen of a US client state, it’s natural for me to be at least as interested in what happens in the metropolis as in my own provincial location.

2

Martin Holterman 06.16.20 at 10:47 am

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.

3

afeman 06.16.20 at 12:07 pm

JQ: As I (a USer) read the OP I thought “I’m so sorry this is relevant to you.”

4

MarkW 06.16.20 at 12:18 pm

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.

5

alfredlordbleep 06.16.20 at 2:56 pm

Gorsuch could present himself as libertarian* in passing.
Roberts and the gang of Five can carry on with their baldly political power moves welcoming voter suppression and other 18th century restoration/preservation (etc. )

*seemingly striking a discord for Christians but what do I know?

6

Doctor Science 06.16.20 at 3:00 pm

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.

7

Dave Heasman 06.16.20 at 3:13 pm

The broadest brain our nation ever knew…
I thought it was from Pomes Penyeach but it appears to be a music hall song, words by one William Jerome.

8

Dave Heasman 06.16.20 at 3:21 pm

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

9

Thomas 06.16.20 at 7:49 pm

Forgive my naivete, but why on earth wouldn’t the Democrats pack the court, if it’s an available option? Sense of fair play? Or are there practical obstacles?

10

Andres 06.16.20 at 10:15 pm

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.

11

LFC 06.16.20 at 11:07 pm

Like at least several of the “big” cases that SCOTUS decides, this strikes me as one of those cases where there is no unequivocally and obviously “correct” answer as a matter of strictly legal analysis.

The Gorsuch reading of the statute gets to the result that most readers of this blog (including me) prefer, but the Alito reading is not obviously wrong. Gorsuch claims he’s starting from a reading of the word “sex” that is exactly the same as Alito’s (sex = biological sex only), but if you look a little beneath the surface of the Gorsuch opinion (at least the first 11 pp or so, which is what I read), you see, or so I’d suggest, that he’s reading the word “sex” a little more broadly than Alito is.

Alito says an employer could have a policy against hiring any gay or transgender people and that wouldn’t be “discrimination because of sex” b.c the employer would not even know the applicant’s sex. He cites to a place in the oral argument where one of the lawyers apparently conceded that wouldn’t violate Title VII. Of course in this case the employers did know the employees’ sex, but Alito’s point is that these bases of discrimination are not as closely tied together as the majority contends.

The Alito dissent is pretty much the kind of opinion that Roberts himself has written in other contexts. For example the 2007 Seattle schools case, where Roberts read Brown v. Board and progeny narrowly to outlaw intentional, de jure “discrimination” based on race, period, and Breyer, dissenting, read Brown more broadly to outlaw a whole system of racial “subjugation.” Breyer was right and Roberts wrong, but Roberts was not so obviously wrong that his opinion was a complete hack job. Ditto for Alito’s opinion here, except that Alito probably has better legal arguments than Roberts did in that Seattle case.

Tl; dr: As in several “big” SCOTUS cases, there are reasonable — in the sense of non-laughable — legal arguments on both sides here. Which means it comes down to extra-legal considerations: which result is better as a matter of policy (or, if you’re Roberts, from an “institutional” standpoint)?

12

Ebenezer Scrooge 06.16.20 at 11:09 pm

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?

13

JHW 06.16.20 at 11:53 pm

LFC: No, Alito is plainly wrong and the differences between the majority and the dissent don’t turn at all on the definition of “sex.” The specious argument about a case where an employer doesn’t know the employee’s sex is quite soundly refuted in the majority opinion (on page 18, after you stopped reading). Gorsuch uses the example of a box that asks an applicant to check if she is Black or Catholic; an employer won’t know which one, but refusing to hire on that basis would still be discriminatory. Other examples abound. What about a box asking whether an applicant was an interracial relationship. What about an online job application that asks, before you select which position you’re applying for, whether the position you’re applying for is one usually occupied by people of “the other” sex–and rejects you immediately if so. Alito is playing word games, which is all the dissenters have left.

14

John Quiggin 06.16.20 at 11:58 pm

“Forgive my naivete, but why on earth wouldn’t the Democrats pack the court, if it’s an available option?”

It’s a significant escalation in the conflict, with big political risks. Packing the court to overturn Citizens United could easily backfire. To justify such drastic action requires clear cases where the Court is going against strongly held public beliefs to promote a rightwing agenda. An anti-gay decision in this case would have provided such a case.

Agreeing with Ebenezer @12, Roberts (and, it now appears, Gorsuch) will try and protect the economic and structural interests they see as vital, while avoiding handing ammunition to a future Democratic Congress and President.

15

MarkW 06.17.20 at 12:26 am

Doctor Science @6

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.

So, what — you actually think Roberts scripted the dueling opinions between Gorsuch and Alito in this case? And that if Roberts decided that was not the right strategy in this instance, Gorsuch would have fallen in line and done Roberts’ bidding?

That’s about 180 degrees from my reading of Gorsuch who I don’t think takes direction and has almost been acting as if he’s the de facto Chief Justice since his first days on the court. But perhaps we can save your idea if we assume that Gorsuch himself is the mastermind in the secret stop-the-court-packing plan?

16

J-D 06.17.20 at 1:06 am

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

17

Collin Street 06.17.20 at 1:59 am

It always struck me that impeaching Alito would be easier/safer than court packing: I don’t think he’s the sort of person who’d hold up well to a dispassionate “where is this rule you’re working under found in the text of the constitution”, maybe get a few clerks as witnesses to the writing process. Thomas and kavenaugh while you’re at it, and roberts if he’s left evidence of his misconduct.

If you can pack you can impeach, and..
the actual problem here isn’t too few lefties, it’s too many evil turds who are bad at jurisprudence. Dilution only goes so far in fixing the contaminated milkshake.

18

LFC 06.17.20 at 2:27 am

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.

19

LFC 06.17.20 at 2:37 am

Collin Street @17

On the offchance you’re serious: no, you can’t impeach a Justice for the reasoning he or she uses or his or her jurisprudential approach. (Anyway, this particular case had nothing directly to do w/ the Constitution, it was a question of how to read a law passed by Congress.)

20

John 06.17.20 at 3:05 am

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.

21

J-D 06.17.20 at 5:54 am

On the offchance you’re serious: no, you can’t impeach a Justice for the reasoning he or she uses or his or her jurisprudential approach.

To be more precise, the House of Representatives could do that, but only if it decided that the Justice’s jurisprudential approach constituted a high crime or misdemeanour, and that’s what they wouldn’t do.

22

Hidari 06.17.20 at 6:23 am

@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.

23

nastywoman 06.17.20 at 6:45 am

or can’t we just say:

In the US – even ”the Supremes” can’t ignore it – when ”the people” are ”speaking” –
either about LGBT rights or Racism.

24

bad Jim 06.17.20 at 7:07 am

“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.

25

John Quiggin 06.17.20 at 11:42 am

MarkW @15 “So, what — you actually think Roberts scripted the dueling opinions between Gorsuch and Alito in this case? And that if Roberts decided that was not the right strategy in this instance, Gorsuch would have fallen in line and done Roberts’ bidding. That’s about 180 degrees from my reading of Gorsuch who I don’t think takes direction?”

Roberts didn’t need to direct Alito, since he had a majority already. As for Gorsuch, I agree he is acting independently – the OP says as much.

26

LFC 06.17.20 at 1:20 pm

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.

27

icastico 06.17.20 at 6:31 pm

The idea of “packing the court” seems politically untenable. That said, I see advantages to adding a single justice to the SCOTUS. A 10 justice SCOTUS – even number – 5 to 5 outcomes possible. This sets up a situation where the force of arguments in close/marginal cases have to overcome the possibility of a non-outcome. You would have to convince 6 justices of your position to win.

Downside, this might incentivize efforts to put partisans on the court.

28

Ebenezer Scrooge 06.17.20 at 6:59 pm

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.

29

Orange Watch 06.17.20 at 10:31 pm

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. Firing a transman is not what is being considered, it’s firing a woman for presenting as a man when men who present as a man are not fired.

On the one hand, this is hard to argue with and is rhetorically brilliant. Homo/transsexuality does require a reference to sex, if only by way of gender presentation, and in this way discrimination of this sort will generally be necessarily sexual discrimination as well. I could see laser-focused rationales that circumvent this logic, however. While something as abstract as “presenting as a sex other than your assigned sex” could be atomized to e.g. wearing a dress when male and thus still looped back to sexual discrimination, it seems as though “surgically altering your gender” or “taking [certain] hormones above certainlevels” could be trotted out in a sexually indiscriminate manner that would thread the needle this strict textualism presents. Certainly, the deep legal weight afforded to assigned sex in the decision makes me wary for the T & I portions of LGBTQIA.

Perhaps I’m too cynical. I really don’t trust Gorsuch, but he does seem more wedded to fiscal conservatism than social conservatism. Time will tell, I suppose…

30

Matt 06.18.20 at 1:16 am

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.

31

Jerry Vinokurov 06.18.20 at 3:42 am

The idea of “packing the court” seems politically untenable.

It’s only politically untenable because Democrats refuse to commit to doing it. It’s pure self-sabotage.

Re: Gorsuch, he’s not there to be a culture war guy (and not much in his past suggested that he would be), he’s there to enact a repeal of the modern administrative state. If his principles, such as they are, occasionally land him on the right side of culture war issue, that’s nice, but it pales beside the harm he’s going to do on any case related to, say, environmental regulation.

32

Lee A. Arnold 06.18.20 at 5:20 pm

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.

33

ph 06.19.20 at 1:31 am

Thanks, John, for a good OP and to others for the generally very sensible and informed comments. @29; 30; and 31 seem very sharp. A couple of small dissents.

Abortion is a far more important issue for faith-based voters than questions of sexual orientation. When questioned on which bathroom C. Jenner might use at a Trump hotel, the nominee shrugged – who cares.

Mis-reading and mis-representing others to suit our own preferred narratives yields little of use and some extremely unpleasant surprises – see Nov. 2016. I don’t think many on this thread are doing so, at least intentionally.

The summer of 2020 looks increasingly like the summer of 2016, replete with ‘bombshell’ books ‘certain’ to finish the candidacy of the interloper/disrupter (Lee’s @ 32 ) hit the shelves and voters with the same impact as they did then – changing nothing.

The arguments which count are economic and cultural. On both these fronts Trump is miles ahead. On the economic front, Trump has no opposition. On the cultural front, recent events have made him even stronger. Unless, of course, you believe a largely white block of voters (70 percent) delight in watching mostly white millionaire celebrities and self-serving politicians taking a knee to acknowledge ‘our common guilt.’

As I noted on Henry’s excellent thread, the main difference between 2016 and 2020 is the absence of real debate. Defunding the police is a ‘thing’ and a thing very few who own homes, or who raise families, in mildly impoverished areas support. Pointing this out – that many within the BLM movement question the sincerity of their ‘white liberal’ allies is enough to earn one cancellation is happening in real time.

Innocent people are being very publicly destroyed by media mobs and Twitter world. The unwoke watch appalled as cities burn, and the damage in their own home towns goes unreported because to do so ‘might help Trump.’ Nobody normal wants to live in a world where merely criticising BLM is deemed as positive proof of racism.

‘Silence is violence’ is Donald Trump’s re-election ticket.

22 Prairial An 2 did for Robespierre and his allies. That’s the fact. Nobody wants to live in a society where one group cannot be criticised or mocked, and insufficient enthusiasm for group think is punishable by (career) death.

Many reject the notion of systemic institutional racism. That these folks can be maligned and denounced freely as racists without cost is the best predictor of what’s going to happen this November. Surprised?

34

ph 06.19.20 at 2:19 am

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.

35

beatrix k 06.19.20 at 4:17 am

Orange Watch @29:

speaking as a bona fide transsexual, I don’t quite see how me taking estrogen or wanting a vag isn’t covered by this interpretation of the statute. I’m curious what you meant by that part.

moreover, the fact that this decision does not enshrine self-ID of gender in law does not concern me nearly as much as it seems to concern you. gender identity is honestly a pretty opaque thing, and it’s actually some comfort that this is entirely based on presentation and such, because those are the parts you can see. however, I don’t disagree that the work is unfinished.

ultimately, I can’t force other people to believe I’m not a man, and I’m past the point of being willing to argue about it with people who think it’s up for debate. people are going to think what they think and I have to live my life anyways; as long as my siblings in the trans community are protected by the law I don’t really care how it gets done.

36

Collin Street 06.19.20 at 5:26 am

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.

37

John Quiggin 06.19.20 at 6:24 am

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

Say what?

38

J-D 06.19.20 at 7:04 am

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

Say what?

Are you seeking clarification from ph?

Has history taught us nothing?

39

tm 06.19.20 at 9:02 am

Hidari 12: “The social conservatives are only the camouflage. The real goals of the American Right are, and always have been, primarily financial.”

What a dangerous half-truth. Hard to believe but apparently there are still self-described leftists who deny that fascism is a real thing. Get rid of this delusion, open a history book and look reality in the eye.

40

nastywoman 06.19.20 at 10:29 am

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”?

41

nastywoman 06.19.20 at 10:36 am

”Finland is a beautiful city”

Ups?
Where am I?
I’m so STUPID that I mixed up Finland with ph?

I meant ph is a beautiful city!

https://youtu.be/BnzXMRkBjMY

42

ph 06.19.20 at 12:15 pm

@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.

43

SusanC 06.19.20 at 1:28 pm

April Ashley was in the news in 1961, a couple of years before the Civil Rights Act was passed in 1964. So the question of whether the prohibition on discrimination by sex also has the consequence (even if unintended by the legislators) of making transgendered people also a protected class could have been asked at any time since. The argument the Supreme Court has taken that it does apply to transgendered people seems, to me, pretty solid.

The way they’ve managed to categorise discrimination against lesbians or gays as sex discrimination strikes me as more of a stretch. To say that trans women are basically like cisgendered women except for having a different sex on their birth certificate, so it’s discrimination by sex … sure. To say that being gay is protected, not because being gay is protected in itself, but because heterosexual women also like having sex with men and so a gay couple is really just like a straight couple apart from the sex of one member. Well, it might have taken us gay marriage etc. for the Supreme Court to arrive at that mental model of what gay relationships are like.

44

Ebenezer Scrooge 06.19.20 at 4:14 pm

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.

45

Andres 06.19.20 at 11:46 pm

Lee J. Arnold @32: “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?”

I don’t agree with this at all. At the risk of waving a red cape for Chetan Murthy, I will state that the left isn’t helping only if your definition of the left is so narrow as to be useless: the current leadership of the Democratic party, the post-Corbyn Labor party, and the SD and Socialist leadership in France and Germany; but the broader left has a much stronger grasp of reality even if it has trouble putting it into practice within the narrow confines of electoral politics.

Everything else in the paragraph is suspect at best and false at worst. The idea that we are in a post-scarcity society is a myth peddled by the right wing half of the mainstream economics profession, but neither heterodox nor even left-of-center mainstream economists believe it. What we have is instead a society that has created the illusion of non-scarcity by progressively shifting production costs to peripheral country workers and to the environment as a whole in the form of pollution and resource depletion. Ecological economics, btw, is the part of heterodox economics that has arisen in reaction to the post-scarcity myth and to the obsession of mainstream economics with growth.

The problem with saying that the left puts its faith in the “labor movement” is that the broad left sees its role as defending the interests of labor given that such a defense is the only way to establish true democracy, whether or not there is an organized labor movement. Global capitalism has been extraordinarily successful in suppressing organized labor through a combination of (a) deindustrialization in the richer countries, though social democracy in Europe has slowed this process, (b) active union-busting, especially in the U.S., (c) the perpetuation of racism in hiring and housing, resulting in many labor unions becoming ethnically homogeneous, racist into the bargain, and thus discredited in the eyes of the larger population. The bill that is paid for these policies comes in the forms of social explosions against racism, such as what we see now, and also in the social pathology of deindustrialization in those parts of the U.S. that are not part of large, financially-connected metropolitan areas.

Speaking of finance, the financial system is not untethered from the real economy nor divorced from non-financial industry profits, despite the existence of financial bubbles. The late 1990’s dot.com bubble burst when it was realized that only a small number of the internet startups were earning the kind of profits that made them sustainable as borrowers or capital attractors, and the 2008 financial crisis was the slow-motion aftermath of the economy’s change after mortgage lenders ran out of people with a pulse that they could sell houses to, leading to a drastic decline in housing-related employment that created the first wave of mortgage defaults. Of course, the financial industry can temporarily remove itself from the real economy by lending to and investing only in itself, but then the economy usually crashes if non-financial businesses don’t have access to finance; that is what is happening with COVID19.

Lastly, I should mention that the constitutional amendments you propose won’t do the trick either. As long as the U.S. is an oligarchic republic set up to defend the interests of a handful of wealth corporate directors, there will not only be class conflict but also partisan conflict (even if only of the muted kind) and the composition of the SC will remain a battleground.

46

LFC 06.20.20 at 1:00 am

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.

47

Hidari 06.20.20 at 7:00 am

@42 ‘Globalists on Wall Street would love a Biden win.’

This is very very obviously false. (Correct about big tech though, which relies heavily on highly educated immigrants for its financial model).

I remember the veteran UK reporter Jon Snow being ‘on the floor’ on the night or day following the election of Trump and when the big TV screen showed Hilary giving her ‘losing’ speech, the traders spontaneously broke into a chant of ‘lock her up! Lock her up!’.

Trump is not an anti-establishment candidate. At all. At all. He just represents a different ‘wing’ of the establishment from the Dems, i.e. Wall Street, the Armed Forces, the Police, ICE. 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 so on, although the opposition to Trump from these sources is mainly performative and not serious.

They’d prefer Biden to Trump in an ideal world, but, when push comes to shove, they don’t really care.

48

nastywoman 06.20.20 at 8:15 am

@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.

49

chedolf 06.21.20 at 1:36 am

@47 “[‘Globalists on Wall Street would love a Biden win’] is very very obviously false.”

No, it’s true:

Bloomberg 6/19/2020: Private equity firms have donated $21 million to Biden, $3.6 million to Trump.
https://www.bloombergquint.com/global-economics/private-equity-donors-favor-biden-over-trump-on-bet-to-end-chaos

New York Post 6/3/2020: Wall Street firms have donated $29 million to Biden, $6 million to Trump.
https://nypost.com/2020/06/03/wall-street-donors-favor-biden-over-trump-in-2020-election-report/

50

nastywoman 06.21.20 at 6:49 am

@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.”

51

J-D 06.21.20 at 10:52 pm

@47 “[‘Globalists on Wall Street would love a Biden win’] is very very obviously false.”

No, it’s true:

Why does it matter either way?

52

Hidari 06.22.20 at 6:45 am

@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.

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