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Topic: What's Your Favorite U.S. Supreme Court decision? (Read 2170 times)

What's Your Favorite U.S. Supreme Court decision?

Frenzie actually prompted this thread and provided its first post: In another thread, he pointed me to Bostock v. Clayton County. I remembered the case vaguely...and of course I'd had something to say before I'd even finished the Syllabus!
Quote from: me
I'd make three points...
Prefatory, the case of so-called "hate crime" is instructive. Motive is not generally an element of an indictable crime. It is seldom -if ever- a proper part of the prosecution's or the defense's brief. It does have a cogent and obvious place in the penalty phase of a trial, after a conviction -- either as mitigation or enhancement of punishment.
(True, both prosecutors and defense consul often use such when making their case to a jury... that's not important: The judge's discretion limits their excesses! Well, that's the expectation...)

Codifying motive as a separable offence smacks of "thought-crime"!

1. The trope of "disparate impact" is defective, in logic and in law. Statistical reasoning -as practiced- is too weak to support a charge on its own, and as such contravenes the ancient right of a defendant to know what precisely the charges are, against him!

(To see how pernicious the rule of "disparate impact"  can be, see Massachusetts v. EPA. It countenances the importation of the Precautionary Principle into American law!)

2. The conflation of sex and gender is uncalled for. "Sex" means physical, biological determinants, not moods or (mis)conceptions, in Title VII... Nor does it subsume "sex acts" or proclivities.

3. The precidential status of dicta, properly called, needn't (I'd say shouldn't...) be elevated by judges to suit their own (or the supposed public's) understanding of changing mores: Writing law is the job of Congress.
Title VII can (and perhaps should) be amended... But not by judges, who then make it the job of Congress to correct misapplication of their laws!

So: Bostock was wrongly decided.
I may have to eat my words, seasoned with your comments and arguments or strewn with the gristle of Gorsuch's textualist pretensions! (Nothing like an ill-aimed insult to a sitting Justice to start this thing off, eh? :) )
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Re: What's Your Favorite U.S. Supreme Court decision?

Reply #1
Well, it's a bit early here so I'll keep it short, especially since you say you wrote this on the basis of only the syllabus, but the conflation of sex and gender as you call it was extremely well reasoned. I find such an originalist opposition completely untenable; in fact I find the whole approach greatly suspicious because it seems to be selectively applied when someone doesn't like the only rational conclusion that can be reached on the basis of the text.

Gorsuch's argument hinges on what the lawmakers meant when they used the word "sex" without any involvement of thoughtcrimes or mores, and of course on the basis of what people are actually discriminating by. If you're not letting a woman be a mechanic solely because she's a woman that is the very definition of sexual discrimination. It's completely irrelevant why you're discriminating against men; all that matters is that you are discriminating. Whether the framers envisioned this particular scenario is quite irrelevant. You'd get the absurd situation that everything you can argue wasn't thought of at the time isn't covered by a piece of legislation, while you should simply interpret what the law says.

Edit: typo

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #2
Maybe if America was ever to become more democratic and more get a decent life noting that corner might not mean much!
"Quit you like men:be strong"

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #3
Whether the framers envisioned this particular scenario is quite irrelevant. You'd get the absurd situation that everything you can argue wasn't thought at the time of isn't covered by a piece of legislation, while you should simply interpret what the law says.
I get what you mean... But it ain't the framers (did you mean The Framers?) intent that's the problem: We're not talking about amending the constitution, per se! (see below)
One of the reasons to avoid judge-made law is simple: Consider, should (and, of course, we're always talking about a "should" in such cases) Kidnapping -a Federal Offense- admit the matter of "soul stealing" via photography into its ambit?
While such an example might strike you as silly, it's precisely such questions that, in Oral Argument, draw the pith of a complex and complicated matter of contention out for all to see!

What you call an irrelevancy is a foundational element in American law!
Some few maxims are relevant:
Don't throw out the baby with the bathwater! (If part of the law is unconstitutional, sever the part -leaving the rest intact and in force- and consider striking down the part...)
Don't cut off your nose to spite your face! (If some questionable part seems not ripe for adjudication, remand -with a mandamus if reconsideration isn't possible...)
You can't have your cake, and eat it too! (If a part is offensive but can't be severed -say, because it's integral to the whole- strike the entirety...)
And so on. My personal favorite, during these modern times, is:
A stitch in time saves nine! (Make an indefensible change, support it through every challenge brought against against it, and pray it survives long enough to be defensible as precedent! That way, the court has decided, without taking responsibility for its decision...)
One that you'd -I'm sure- think unnecessary:
A dog returns to its vomit! (When a law is so odious that it can't be tolerated, strike it and all its progeny... E.g., the Fugitive Slave Act and the Dred Scott decisions.)

Title VII of the Civil Rights Act is merely a law passed by Congress; despite the many opinions about it in the cannons of various courts. Amending such is easy...and only the higher courts' annals, and their keepers, are affected! (And perhaps the hubris of some jurists wounded and egos deflated -a salubrity much needed! Unless there's considerable opposition to the proposed changes (corrections or additions and/or deletions).  Leaving such to re-interpretation by the higher courts (Circuit, Appellate, and the Supreme) is either recidivist or onerous...or both.

Court systems in most states follow the federal model Congress decreed for the Federal Courts; the constitution merely gave the power to design and create such to the Congress. But lower courts, county courts mostly follow the older patterns of the common law, where the power to create judge-made law (like in England) is entrenched and accepted.
Again, conflating our higher courts with their common law cousins is anathema to our peculiar but valued traditions!

Of course, you disagree... :)
(I've been kinda busy -- but I'll return to  Bostock, et al. eventually.)
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Re: What's Your Favorite U.S. Supreme Court decision?

Reply #4
I get what you mean... But it ain't the framers (did you mean The Framers?) intent that's the problem: We're not talking about amending the constitution, per se! (see below)
In this specific case, the framers of the Civil Rights Act. But those who frame any law, no matter how foundational or minor. Lawmakers are well aware of the need to restrict things further if that's their actual intent.

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #5
One of the reasons to avoid judge-made law is simple: Consider, should (and, of course, we're always talking about a "should" in such cases) Kidnapping -a Federal Offense- admit the matter of "soul stealing" via photography into its ambit?
Why shouldn't it, if soul stealing:

a. Is real.
b. Meets the legal definition of kidnapping.

I think your example rather proves my point. Just because the framers didn't consider soul stealing when they wrote the law, doesn't mean soul stealing is a-okay! On the contrary, a well-written law on kidnapping should implicitly cover soul stealing, or explicitly restrict the definition of kidnapping to physical bodies only. (Perhaps you made up this specific example because chances are a "person" is always implicitly assumed by legal precedence to be a physical body, which is something that would have to be taken into account. But laws aren't written in ignorance of how courts interpret laws; quite the opposite.)

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #6
laws aren't written in ignorance of how courts interpret laws; quite the opposite.
Not entirely, no. But you exaggerate the meaning of "interpretation" beyond any reasonable bounds, to admit "soul stealing" into the range of reference for "kidnapping"...
Another example:
Quote
A therapist asks his patient how his visit to his mother went.
The patient says, "It did not go well at all. I made a terrible Freudian slip..."
"Really!" the therapist says. "What did you say?"
"What I meant to say was 'Please pass the salt.' But what I said was 'You bitch! You ruined my life!'"
Would your interpretation of Freudian slip let this slide? :)

How much more important must it be, then, to limit the range of interpretation of the meaning of words used in laws?
...putting lipstick on a pig ([your turn to play! Fill in the corresponding legal tactic here...])
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"Humor is emotional chaos remembered in tranquility." - James Thurber
"Science is the belief in the ignorance of experts!" - Richard Feynman
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Re: What's Your Favorite U.S. Supreme Court decision?

Reply #7
But you exaggerate the meaning of "interpretation" beyond any reasonable bounds, to admit "soul stealing" into the range of reference for "kidnapping"...
Kidnapping is abducting someone against their will. If you abduct someone's soul against their will, why would it be so unthinkable that it might fall under the legal definition of kidnapping? I don't think you're taking your own thought experiment seriously.

If we look at Dutch punishment law, we can see that it says:
Quote from: http://www.wetboek-online.nl/wet/Wetboek van Strafrecht/282.html
Hij die opzettelijk iemand wederrechtelijk van de vrijheid berooft of beroofd houdt, wordt gestraft met gevangenisstraf van ten hoogste acht jaren of geldboete van de vijfde categorie.
Quote
He who intentionally robs or deprives a person of his liberty unlawfully will be punished with imprisonment of up to eight years or a fifth-category fine.

The relevant legal questions here are what a person entails and what it means to deprive a person of their liberty. Broadly speaking there are three possibilities with regard to souls:

  • There is neither evidence for souls nor for the stealing thereof. [There is no evidence that souls can be stolen.]
  • There is evidence for souls, but stealing them is roughly comparable to stealing hair or nails.
  • There is evidence for souls, and stealing them has severe consequences. For example, a person can recall how their soul was kept in captivity, and during the absence of the soul their body entered into a comatose state.

By (presumably?) opting for the first interpretation there's no value to be found in your thought experiment. It can, would, and should simply be dismissed. It would never make it to court. The only way in which your thought experiment can claim to hold any relevance is if we assume there to be a somewhat reasonable possibility that soul stealing might be kidnapping. In other words, some variety of the third scenario.

Perhaps it's easier to see the logic of the argument if we rephrase it slightly. Imagine a kidnapping law from 1600. The framers can only reasonably be said to have envisioned kidnapping by walking, horses, carts and ships. But now it's 1900, and someone was abducted by dirigible. The framers didn't foresee dirigibles, and there's no legal precedent with regard to dirigibles. It's not kidnapping, argues the defense. There's never been a kidnapping case in which dirigibles were considered a viable means of abduction, and just imagining the sheer wonder of being on a dirigible looking down at the world from far above should be enough to convince you that it's actually a wondrous opportunity. Quite the opposite of a kidnapping.

There's another option that I left unstated, but an act like lobotomy could also reasonably be called stealing of the soul. To take it (somewhat) out of the domain of grievous bodily harm, we might imagine that the brain can be restored as new. A person without a well-functioning mind might be said to have their liberty taken from them. I'm not saying that's a valid legal interpretation, but you can't just summarily conclude it's not either.

Gorsuch is crystal clear. A man or a woman is treated in a discriminatory way, which they wouldn't "but for" their sex. Talking about transgender nonsense is nothing but a distraction. Transgender means someone is behaving in a way that's "incorrect" for their sex. Discriminating on the basis of sex is illegal, plain and simple. There wouldn't be any discrimination if there were no sex involved. It's not Gorsuch confusing sex and gender, it's you. ;)

Would your interpretation of Freudian slip let this slide?  :)
That would fit common usage, so that's context dependent. But psycholinguistically (i.e., scientifically) speaking Freudian slips are a flawed explanation at best. Speech errors show something about language processing, not about underlying hidden thoughts. In that sense Freudian slips are quite similar to souls: neither exist in a relevant sense.

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #8
Broadly speaking there are three possibilities with regard to souls:
Four.
There is evidence for souls but souls cannot be object of property, therefore cannot be robbed.

It's the body that is property of the soul, therefore the body can be robbed and if a ransom asked for, kidnapped.

Sorry for the interruption, please continue your legality debate.  :)

A matter of attitude.

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #9
That's fair, I should've phrased that as "there's no evidence souls can be stolen." The reason why isn't relevant to the point about kidnapping.

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #10
By (presumably?) opting for the first interpretation there's no value to be found in your thought experiment. It can, would, and should simply be dismissed. It would never make it to court. The only way in which your thought experiment can claim to hold any relevance is if we assume there to be a somewhat reasonable possibility that soul stealing might be kidnapping.
In the American system such a determination can't be made (except by Congress, in the process of enacting law...) before a case, a controversy, is brought to the court. Our judges have no power to propound such questions, let alone answer them before... Not in their official capacity.
(Such things do come up in their opinions as explanatory... But when it does it is dicta -- not precedent for future cases and of no import re the lower courts.)

Perhaps it's easier to see the logic of the argument if we rephrase it slightly. Imagine a kidnapping law from 1600
That doesn't get us anywhere: The mode of transporting the victim is not a necessary element of the crime.
We're talking about interpreting the crucial element of the crime!
 
There's another option that I left unstated, but an act like lobotomy could also reasonably be called stealing of the soul. To take it (somewhat) out of the domain of grievous bodily harm, we might imagine that the brain can be restored as new. A person without a well-functioning mind might be said to have their liberty taken from them. I'm not saying that's a valid legal interpretation, but you can't just summarily conclude it's not either.
So, medical technology might remove lobotomy from the realm of medical malpractice and situate it among crimes against persons...
Interesting point! But speculative, and not directly before us like "soul stealing" is!

Thanks, for the way you're treating this topic. (You're really getting into the spirit of our court's tradition of oral arguments! :) )

But psycholinguistically (i.e., scientifically) speaking Freudian slips are a flawed explanation at best. Speech errors show something about language processing, not about underlying hidden thoughts. In that sense Freudian slips are quite similar to souls: neither exist in a relevant sense.
I'm surprised! While I agree with your assessment: flawed explanation, it's not vague... Granting the meaning of "Freudian slip," the patient's remarks to his mum are nothing like a slip. (Indeed, they might likely have been cathartic... :) ) But, then, you've missed not only the point: You didn't get the joke!? :)

BTW: Did you read Kavanaugh's dissent?
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Re: What's Your Favorite U.S. Supreme Court decision?

Reply #11
In the American system such a determination can't be made (except by Congress, in the process of enacting law...) before a case, a controversy, is brought to the court. Our judges have no power to propound such questions, let alone answer them before... Not in their official capacity.
(Such things do come up in their opinions as explanatory... But when it does it is dicta -- not precedent for future cases and of no import re the lower courts.)
Laws are written using words like "souls" and "spirits," for example in a phrase like "cities of 50,000 and more souls" (source). That's a pars pro toto or a metonymy. You're presuming the entire question to be ridiculous, which may not follow. A soul is clearly considered part of a person in common as well as legal use, even if we're just using it as a synonym for "physical person" in current reality. Under the right conditions asking the question may not be so silly as to be dismissed out of hand, whether by the prosecution or a (lower) court.[1] To presuppose that keeping a soul in captivity is not kidnapping seems to be begging the question, unless the law explicitly says "physical body" or if it's otherwise clear that "person" means "physical body."

The Dutch organization of judges somewhat regularly publishes pieces urging lawmakers to make some new law they're considering clearer, precisely so they won't have to say they can't judge. It's not the case that judges aren't aware of what lawmakers are doing and vice versa. I think the consequence of your argument is that a judge should be more like a stupid computer program[2] than like Gorsuch who skillfully uses practically applied philosophy.

That doesn't get us anywhere: The mode of transporting the victim is not a necessary element of the crime.
We're talking about interpreting the crucial element of the crime!
That's the point; I'm providing a more accurate analogy with regard to transgender people. Transgender people are dirigibles.

Quote from: Gorsuch
Employers may not “fail or refuse to hire or…discharge any individual, or otherwise…discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s…sex.

Whether you're discriminating against a woman wanting to ride horses or against a woman wanting to fly previously unheard of dirigibles is irrelevant. You're still discriminating based on sex.

BTW: Did you read Kavanaugh's dissent?
Yup, he does nothing but repeat things that were already thoroughly addressed by Gorsuch. He's even so nice as to contradict himself for us: "our role as judges is to interpret and follow the law as written, regardless of whether we like the result." Which is what Gorsuch did. It's Kavanaugh who's trying to wedge in an absurd definition of sex to avoid following the law as written.
Cf. https://en.wikipedia.org/wiki/Burwell_v._Hobby_Lobby_Stores,_Inc. with regard to some uses of the word "person" in legal parlance.
I can't process customer complaint X because there's no field for it.

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #12
Since the current term's decisions are likely to roil our political pot considerably, I thought it permissible to retrieve this thread. :)

Allow me to re-start and restate the major bone of contention (as I see it, of course) between Frenzie and me by using another's words:
Quote
A living constitution cannot be squared with a written one for the generative principle of the former controverts the animating purpose of the latter. Once it becomes permissible to update the Constitution, not by amending it, but by reinterpreting it (whether in the courts of law or that of public opinion), the foundational law loses its force and meaning. The ligatures that constrain the state become attenuated and a government of laws slowly mutates into a government of men. A governmental system that does not check and balance itself is bound to become unchecked and unbalanced. This has less to do with the nature of the system than the nature of those who run it.
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"Humor is emotional chaos remembered in tranquility." - James Thurber
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Re: What's Your Favorite U.S. Supreme Court decision?

Reply #13
Well, I'm glad you so thoroughly renounce your earlier position that the law should be interpreted ad hoc according to the current winds. ;)

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #14
your earlier position
:) By all means, let's start from a state of utter confusion!
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"Humor is emotional chaos remembered in tranquility." - James Thurber
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Re: What's Your Favorite U.S. Supreme Court decision?

Reply #15
Shall we return to Bostock for a bit?
I've now read the three opinions repeatedly, and such supplemental material as I thought reasonable to consult. My sense of the Court's action has not changed:
Gorsuch goes wrong in the very first paragraph of his opinion, where he says "Today, we must decide whether an employer can fire someone simply for being homosexual or transgender."
And how he doesn't recognize such an obvious error escapes me.[1]

The decision he makes is not his (nor the Court's) to make; it is the purview of Congress, and our separation of powers scheme requires the protection of that prerogative... Indeed, he swore a solemn oath to protect and preserve our constitution, which demands such!

What Gorsuch should have said was "Today, we must decide whether Title VII forbids [...]"!

(Both Alito and Kavanaugh point this out indirectly in their respective dissents. That I state it more plainly befits my lowly station.)
Is it indelicate to observe that Gorsuch (and those who concurred in his opinion) usurp the function of the legislative branch? No. But it might be thought rude to high-light the fact that he knew and said as much at the outset...that that was what he was doing.

We'll see if his phrasing is "corrected" when the opinion is officially printed...
Whether or not it is, the Congress should obviate the lapse by amending Title VII or enshrining the result of his opinion in new law, as prescribed by the constitution.
His formulation contains a hidden ellipsis: "whether [it is right or just that] an employer can"...
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"Humor is emotional chaos remembered in tranquility." - James Thurber
"Science is the belief in the ignorance of experts!" - Richard Feynman
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Re: What's Your Favorite U.S. Supreme Court decision?

Reply #16
His formulation contains a hidden ellipsis: "whether [it is right or just that] an employer can"...

On the basis of your quote one might be inclined to think so. Put it back in context, however:

Quote
Sometimes small gestures can have unexpected conse -
quences. Major initiatives practically guarantee them. In
our time, few pieces of federal legislation rank in signifi-
cance with the Civil Rights Act of 1964. There, in Title VII,
Congress outlawed discrimination in the workplace on the
basis of race, color, religion, sex, or national origin.
Today,
we must decide [ON THE BASIS OF TITLE VII AS MENTIONED IN THE PREVIOUS SENTENCE, WHICH YOU, DEAR READERS, KNOW BECAUSE YOU ARE NOT GOLDFISH] whether an employer can fire someone
simply for being homosexual or transgender. The answer
is clear. An employer who fires an individual for being ho-
mosexual or transgender fires that person for traits or ac-
tions it would not have questioned in members of a different
sex. Sex plays a necessary and undisguisable role in the
decision, exactly what Title VII forbids
.

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #17
There, in Title VII,
Congress outlawed discrimination in the workplace on the
basis of race, color, religion, sex, or national origin.
Today,
we must decide [ON THE BASIS OF TITLE VII AS MENTIONED IN THE PREVIOUS SENTENCE, WHICH YOU, DEAR READERS, KNOW BECAUSE YOU ARE NOT GOLDFISH] whether an employer can fire someone...
Are you implying that Oakdale is goldfish? On my part, I have considered that it's his cat typing, not himself. It would explain some things.

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #18
Are you implying that Oakdale is goldfish?
Implicitly accusing of acting like a goldfish, yes.

The goldfish thing came out of my annoyance after looking at the original text to refresh my memory. I had assumed it was quite plausible that the introduction glossed over a thing or two a bit too summarily. Only to find that the quoted phrase doesn't just exist in the broader context of the actual substance of the argument on the following pages, but that the supposed omission is quite literally right there in the preceding and the following sentences! It's impossible to read it the proposed way unless you pretend the sentence exists in some kind of vacuum.

My initial reaction before my sudden onset of annoyance was that dismissing the actual reasoning based on what might implausibly but possibly[1] be construed as a minor oversight in the first few summarizing sentences, is something we should guard for in critical thinking in several ways. The two main ones here being:

  • Just because you've dismissed the weakest argument doesn't mean anything if nothing depends on it. This is a psychological defect in us humans that we have to take great effort to correct for, and even if we're aware of it we don't always succeed. The above superficially looks like an example of that. Gorsuch's argument hinges on what discrimination based on sex means according to Title VII, not on whether the court has the ability to create laws out of thin air.

    Of course I would be remiss if I pretended even for a second that those three aren't just trying to throw sand in your eyes. Kavanaugh rather hilariously writes that "Under the Constitution’s separation of powers, our role as judges is to interpret and follow the law as written, regardless of whether we like the result." That's. Gorsuch's. point! To interpret the law as written, as the courts are supposed to do. That Alito character turns out to be a despicable lying liar when he says interpreting the law is legislating. The court has a constitutional obligation to interpret the law as written, not to make up some contrived claptrap about what people in the '60s may or may not have thought. That would be, gee, what's the word… oh, right, legislating.
  • Given everything that follows, this cannot be what Gorsuch meant. You can't just pretend the context isn't there.

    Gorsuch's argument is quite plainly that in interpretation of the law it would be a bit silly to say that just because some specific kind of discrimination based on sex may not have been envisioned by the original framers who explicitly phrased it as wide as possible, therefore it shouldn't be included. The court doesn't deal with temporal telepathy, but with the text of the law. If they meant something else, they would've or should've written something else.

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #19
Once upon a time a guy on IRC started sharing his selfies. It turned out he was a hamster. You never know about people on the internet.



Re: What's Your Favorite U.S. Supreme Court decision?

Reply #20
It's impossible to read it the proposed way unless you pretend the sentence exists in some kind of vacuum.
You mean, like Kavanaugh suggests Gorsuch did with the term "sex"? :)

To take your sentences "There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide [ON THE BASIS OF TITLE VII AS MENTIONED IN THE PREVIOUS SENTENCE, WHICH YOU, DEAR READERS, KNOW BECAUSE YOU ARE NOT GOLDFISH] whether an employer can fire someone simply for being homosexual or transgender." I'd have to add a question: Did Gorsuch contend that our courts and congresses -up until his interpretation[1]- mis-understood the plain application of the law's terms? Did he imply -in your words- that they were all GOLDFISH?
Do you yourself think he did?

As seems likely to me, he set himself the conclusion and reasoned backwards to reach it... (Roberts did him no favor assigning the writing the majority decision to him! But, after what Roberts himself did in finding the "not a tax" penalty to be a "not a penalty" tax when the ACA was challenged, I guess he's come to believe the old saw Misery loves company!) It's a version of the ends justifying the means, no?

But I appreciate your exasperation. I really do! (And the name-calling too is understandable... :) )
From 1964 through to most of 2019!?
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Re: What's Your Favorite U.S. Supreme Court decision?

Reply #21
I'd have to add a question: Did Gorsuch contend that our courts and congresses -up until his interpretation[1]- mis-understood the plain application of the law's terms?
We already went over all of this previously.

Perhaps it's easier to see the logic of the argument if we rephrase it slightly. Imagine a kidnapping law from 1600. The framers can only reasonably be said to have envisioned kidnapping by walking, horses, carts and ships. But now it's 1900, and someone was abducted by dirigible. The framers didn't foresee dirigibles, and there's no legal precedent with regard to dirigibles. It's not kidnapping, argues the defense. There's never been a kidnapping case in which dirigibles were considered a viable means of abduction, and just imagining the sheer wonder of being on a dirigible looking down at the world from far above should be enough to convince you that it's actually a wondrous opportunity. Quite the opposite of a kidnapping.

When they wrote sex back in the '60s, most of them were presumably only thinking of the visible sex, what we now suddenly call "gender expression." Many would've likely thought an "incorrect" gender expression to be an aberration, occurring only among a few deviants and non-Western cultures. But that's not the point. As Gorsuch writes, what matters is that the discriminators would not make this decision but for sex. That's what's in the text of the law. There's a pretense by Alito and Thomas that Gorsuch changed the meaning of sex, which he clearly did not, and that you can discriminate on gender without targeting sex, which doesn't make a lick of sense.

Another point to keep in mind is that discriminating on multiple grounds doesn't exempt you from Title VII. I mention this explicitly because that kind of thing would be morally outrageous, but it can sometimes happen legally. As an aside, the provision on sex might not even have made it in there if a racist hadn't been concerned that white women might have fewer rights than black men and women. Then perhaps it would've been fully legal to discriminate based on sex in the United States. And a proper textualist like Gorsuch would've gone the other way.
Quote
When an employer fires an employee because she is homo-
sexual or transgender, two causal factors may be in play—
both  the  individual’s  sex  and  something  else
  (the  sex  to
which the individual is attracted or with which the individ-
ual identifies).  But Title VII doesn’t care.  If an employer
would not have discharged an employee but for that in-
dividual’s  sex,  the  statute’s  causation  standard  is  met, 
and liability may attach.

And on the actual language used:
Quote
At first glance, another interpretation might seem possi-
ble. Discrimination sometimes involves “the act, practice,
or  an  instance  of  discriminating  categorically  rather  than
individually.” Webster’s  New  Collegiate  Dictionary  326
(1975); see also post, at 27–28, n. 22 (ALITO, J., dissenting).
On that understanding, the statute would require us to con-
sider the employer’s treatment of groups rather than indi-
viduals, to see how a policy affects one sex as a whole versus
the other as a whole.  That idea holds some intuitive appeal
too. Maybe  the  law  concerns  itself  simply  with  ensuring 
that employers don’t treat women generally less favorably
than they do men.  So how can we tell which sense, individ-
ual or group, “discriminate” carries in Title VII?
The  statute  answers  that  question  directly.   It  tells  us 
three  times—including  immediately  after  the  words  “dis-
criminate  against”—that  our  focus  should  be  on  individu-
als, not groups: Employers may not “fail or refuse to hire
or . . . discharge any individual, or otherwise . . . discrimi-
nate against any individual with respect to his compensa-
tion,  terms,  conditions,  or  privileges  of  employment,  be-
cause of such individual’s . . . sex.” §2000e–2(a)(1)
(emphasis added).  And the meaning of “individual” was as
uncontroversial in 1964 as it is today: “A particular being
as distinguished from a class, species, or collection.”  Web-
ster’s New International Dictionary, at 1267.  Here, again,
Congress could have written the law differently. It might
have said that “it shall be an unlawful employment practice
to prefer one sex to the other in hiring, firing, or the terms
or conditions of employment.”  It might have said that there
should be no “sex discrimination,” perhaps implying a focus
on differential treatment between the two sexes as groups.
More narrowly still, it could have forbidden only “sexist pol-
icies” against women as a class.  But, once again, that is not
the law we have.

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #22
I find discrimination laws highly contentious and pretentious. What is discrimination? Is it "to disadvantage" someone? Or is it merely "to differentiate"? The latter we do all the time without any problem, e.g. passports state (and personal id numbers imply) whether you are male or female, so that's differentiation. Does the law prevent this? No, never did. And it's not clear it would serve any sensible purpose to abolish this differentiation.

But "to disadvantage"? Shouldn't the law be against any and all disadvantaging, not solely on the basis of a limited list like race, sex etc? There's one clear disadvantaging in workplace that no law has ever addressed (and never will): Paying different salary for the same work/position/title (or worse, objectively easier tasks get better paid). Employees "can" (as if they had a choice or say in the matter) negotiate individual salaries. As a consequence, different individuals end up with different salaries, and women may average to a different salary than men. The salary you get is a vital thing - if you don't get it, you may die of hunger and cold - but law turns a blind eye, as if this were not deadly discrimination. Also, in work interviews you usually need to show your face, so the prospective employer necessarily screens you for race, sex, fashion, height, weight, voice, etc. The laws do nothing to address this.

When the limited list was introduced due to feminist pressures - "discrimination in the workplace on the basis of race, [skin] color, religion, sex, or national origin" - "sex" certainly meant merely whether the individual is male or female. It did not mean sexual orientation or, worse, self-perceived identity. Yet in this day and age it does, because we are beyond feminist pressures now - we have LGBT(+etc) pressures, and this permits, nay, demands "sex" be interpreted as whatever - and it's as literal from current perspective as mere male/female distinction was from the 60's perspective.

More fuel to the fire, European countries have started to put "sexual orientation" explicitly on the list. The funny thing is of course that pedophilia and what not are also sexual orientations (how would you argue that they are not?), so does it really serve a sensible purpose to explicitly normalise any and all sexual orientations? Insofar as workplace is concerned, how would sexual orientation even come up? Should everybody be able to advertise their sexual orientations, regardless of the work they are in? Shouldn't only professional qualifications matter in workplace? (The only workplace where sexual orientation would matter is probably porn industry, so regulate that, lawgivers.)

As to "interpreting" that Oakdale has an issue with, it so happens that whenever you read a text, you are interpreting it. Inevitably. It is impossible to not interpret. Learn from the failures of strict Bible literalists. The pitfalls are in fact more applicable to law texts, because law is human, not divine, so law is as flawed as humans in general. Law is not an exact science nor a philosophy. It is a social construct and experiment, a work in progress like AI translation. At this stage, the problem is not how to interpret the word "sex" but that lawgivers yielded to feminist pressures in a manner that gave rise to a slippery slope of problems that keep growing like a snowball.

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #23
(The only workplace where sexual orientation would matter is probably porn industry, so regulate that, lawgivers.)
The law already says you're perfectly within your right to discriminate on the basis of sex in soccer teams and similar matters like porn, in America as well as here.

As to "interpreting" that Oakdale has an issue with, it so happens that whenever you read a text, you are interpreting it. Inevitably. It is impossible to not interpret.
It's quite literally the job of the courts to interpret the law. That's what they're there for. Otherwise they'd serve no purpose.

At this stage, the problem is not how to interpret the word "sex" but that lawgivers yielded to feminist pressures in a manner that gave rise to a slippery slope of problems that keep growing like a snowball.
And yet the very definition of feminism is "Shouldn't the law be against any and all disadvantaging, not solely on the basis of a limited list like race, sex etc?" Anything else is straw feminism.

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #24
At this stage, the problem is not how to interpret the word "sex" but that lawgivers yielded to feminist pressures in a manner that gave rise to a slippery slope of problems that keep growing like a snowball.
And yet the very definition of feminism is "Shouldn't the law be against any and all disadvantaging, not solely on the basis of a limited list like race, sex etc?" Anything else is straw feminism.
I happen to agree. The lawmakers who thought they can address the
grievances of women and ethnic minorities by means of a list like this, were engaged in straw feminism. Also, the "sexual minorities" who have led to the extension of the list are just perpetuating the same straw mindset.

The list is bad form for rights that everyone should have. The list would be a better form for necessary distinctions to be made, but the point of this law is "don't discriminate", instead of "do differentiate". Normally such laws employ an exception list instead, e.g "everybody is equal, except high state officials have privilege, legal might has superiority and bigger capital has priority." I.e.a negative list, not a positive list.