Title VII: Originalism vs. Textualism

The Supreme Court declined to take up new cases dealing with gun rights and qualified ...

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The Supreme Court declined to take up new cases dealing with gun rights and qualified immunity. The court ruled that federal anti-discrimination laws protect gay and transgender employees. Lines are drawn on originalism vs. textualism. David and Sarah have thoughts.


Show Notes:

–Supreme Court cert denials

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  1. Avatar photo
    Philbnichols

    Ooh! Ooh! Ooh! Just reading KDW Texplaining how Texas was brought into the Union, and thought how great it would be for Texans KDW and Sarah to bat around legal punditry with Tennessean David. With a Brisket sighting. Juss sayin.

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      Philbnichols

      You could discuss 'Tex'-tualism.

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  2. David Lancaster

    Wait, so the officers would be arguing that an already-discharged taser presented a threat of death or serious bodily harm? That kind of ignores how a taser actually works. You can't just repeatedly fire it like a handgun!

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    Julia

    Congratulations, Sarah! I felt my staples go in after my c-section b/c my epidural was wearing off, but I can't IMAGINE feeling the incision. Delighted to hear the Brisket is thriving. Please get enough rest!

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  4. Tngraham

    The outcome in the Bostock case was not a consequence of a textualist interpretive method (i.e., the method did not uniquely determine his result), but of Gorsuch's framing of the comparison of the treatment of the sexes. If, instead of comparing the ability of a similarly situated man and woman to be free from discrimination for dating a man (or, respectively, a woman), he had compared the ability of a similarly situated man and woman to be free from employment discrimination in dating a person *of the same sex*, he would have found equal treatment of the two sexes instead of disparate treatment (in this case, the equality would have been that LGBT people of both sexes were equally discriminated against on the basis of sexual preference and gender identity). The question ultimately is which framing of the issue is the appropriate one for him to have used

    Gorsuch's framing can be seen as involving a kind of circularity, in that he assumes at the outset that a similarly situated man and woman *should* be equally free from discrimination for dating whichever of the two sexes they prefer. That is the basis of his comparison for equal treatment. His comparison reflects this presumption, and, given his assumption, he naturally finds disparate treatment. But that assumption is in fact *precisely the question to be decided*: i.e., *should* all people ("similarly situated men and women" is just a way of subdividing the class of "all people" for comparison) have the right to be free of employment discrimination for being involved in a same sex relationship? To presume what you set out to prove is a pretty basic error.

    In short, Gorsuch's decision is not the result of textualism, but of an erroneous framing of the issue—a framing which incorporates circularity.

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  5. Chris

    This podcast episode made me a fan of all things Supreme Court. It almost made me want to be a lawyer, but then I safely realized I don’t have to be one to enjoy and follow the Supreme Court drama! Just hearing about the hierarchy at the court, speculating on the decision making for writing assignments, learning about the approaches to law interpretation, and the considerations in the future cases because of this precedent. All very interesting! As a result of this, I had some future episode segment ideas (I’m a newbie to this stuff, so be kind if the suggestions are actually lame...)
    1) what are the interpretation philosophies across the 9 justices? (Clearly some argue they both believe in textualism but disagree with how it’s applied). I’m specifically interested to learn the “liberal” justices philosophy. I also wonder about how “fluid” a justices interpretation philosophy can be- can / do judges pick and choose their philosophies for interpretation depending on the case.
    2) Though it would be a poor substitute for missing out on getting to hear a 2nd amendment case, I would love to hear you provide an overview of how arguments would go for the various interpretation philosophies of the 2nd amendment?

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    Sad Trombone

    Is there any chance Justice Thomas might retire to make sure his replacement is chosen by Republicans? It might get people's minds off the riots.

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    Kevin Johnson

    Great pod. On the Atlanta killing and it’s differences from the Floyd killing, you made useful points on the legal side. Sarah mentioned, correctly in my view, that the videos and the “emotions they cause” can have similar effects, despite the legal differences. I would add that, combined with the truth of racism (particularly stereotyping of black men) and the existence of police misconduct there are some terrible untruths which activists promote and the media largely let stand. 1) The lie that there is an epidemic of police killings of black men. The numbers are very low and steady over recent years. Dr. Fryer of Harvard says police are more likely to use deadly force against whites than blacks, while adding that police more often use non-deadly force against blacks; 2) the lie that Michael Brown was executed in cold blood rather than killed in justifiable self defense (per Obama DOJ) and the “hands up, don’t shoot” theme promoted on CNN and on tee shirts throughout the protests and riots; 3) The BLM deception of issuing lists and posters of “blacks killed by police” without noting that almost all on their list (per Christine Rosen) were killed in self defense or justifiable defense of innocents. These lies and deceptions cost lives, both in dissuading police from acting against criminals threatening minority neighborhoods and falsely telling black men that any interaction with police is a death sentence. House Minority Whip said today that the Atlanta victim may have resisted arrest to avoid ending up like George Floyd. That message is based on lies or mistakes but many will never know if the media keeps covering for ideological propaganda raised to hysteria. Turning terrible truths which we must address into terrible and dangerous untruths can’t save black lives; given past examples, it will cost black lives.

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    Victor Clairmont

    So rights for LGBT's continue in the workplace, and David also believes that the religious liberty will also continue to be protected through ministerial exceptions (though the question pops up, who is designated a minister and why only them in a religious congregation). The latter though, we are uncertain of but David is basing on previous wins for religious liberty.

    Pardon me, but at some point in the future these two fundamental idea's are going to rigorously clash. The culture war is not stopping, and the Supreme Court stepping in from Roe vs Wade, (We are now more polarized than ever here, some states allow third trimester abortions while other's pass heartbeat bills), to the Second Amendment (semi-automatic bans on Ar-15's while still allowing semi-automatic pistols when both fire just one bullet per pull of the trigger as an example), to even Obergefell vs Hodges (Same Sex Marriage). It just feels like when the Supreme Court settles issues these days, things feel like they are getting worse as wedges are driven into the populace that they do not get to vote on. Or if they do at the state level, (remember Proposition 8 in California?) the supreme court steps in and changes or helps the direction of it.

    I just don't think, with the record of the Supreme Court settling issues, it is settling things at all in the long run. I just don't see how if you believe life is sacred and at conception a baby is a baby, that you compromise with abortion on demand, or if you view the rights of the woman as paramount, you compromised with a fetus because you don't think it's a human at conception. The starting points of the arguments are so vast, it's basically impossible to come to the center on them.

    I am not saying now, but eventually years from now, probably decades, these court cases will be revisited by a population with a different set of morals and values on how they view this issue. The stance of religious people, who view homosexuality as a sin (Both Christianity, Judaism, Islam) will now feel more under pressure, (Masterpiece Cake Shop is still being sued by transgender activists and the state of Colorado even if the Supreme Court was more in it's favor) vs those who feel discriminated against, rightly so in the past, in the LGBT lobby that then seems to want to punish sincere religious believe. And I actually in favor of gay marriage not being discriminated against by the government,

    These culture arguments went from, "We want abortion safe legal and rare," to "Shout your abortion." It went from, "We want to marry and be left in peace," to "You will me made to care." I just don't think the supreme court in the long run is helping.

    I wish that the parties and people who vote politicians in, actually pushed for a two thirds vote in congress to pass constitutional amendments rather than the supreme court trying to always settle things. The 1964 Civil Rights bill was a good thing culturally from the courts. Not everything else is. Sometimes you do need the will of the people to decide something, rather than elites in black robes. Because when 9 people decide the fate of 320 million people, things don't always work out.

    Sorry for the wall of text, I am just thinking a loud. Maybe I am seeing things wrongly.

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    Jenny

    I made this point on TMD too, but I want to say again that Gorsuch's vote did a lot to restore my faith in the system. While I am starting to better understand how the justice system works and am getting to know its players (thanks to this podcast), I would have fully expected Gorsuch to make a predictably conservative ruling against including sexual orientation in Title VII. This was not a fair opinion of Gorsuch, and I'll be taking another look at 'conservative' judges to see if I'm missing something.

    I'm sure Gorsuch will make rulings I don't like in the future, but at I will feel like he's making them without a political agenda.

    Sarah, way to go, mama! I thought I was a hero when baby number 2 decided to make his apperance before I could get an epidural. A c-section without medication? I just can't imagine.

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  10. Joe Kippley

    I would like to think an employer could fire a white employee who showed up to work wearing black face. This is offensive/immoral behavior in our current cultural understanding. However, would the employer run into trouble with Gorsuch's literal interpretation of Title VII seeing it as "discrimination based on color" as there would be but-for causation that the firing inherently took account of the fact of the employee's skin color? Would the employer run into even more trouble if no text of the statute had changed, but over a period of decades the general cultural disapproval of blackface gave way to a general cultural approval of some concept of transracialism?
    Wondering if The Dispatch community and/or Advisory Opinions could take up this hypothetical or another in the Title VII list of race, color, national origin, etc to see how Gorsuch's Textualism on "sex" holds up?

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