Wednesday Writs: SCOTUS, Gorsuch, and The Amalgamation of Bostock

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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23 Responses

  1. veronica d says:

    Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law.

    Perhaps it’s just me, but this statement seems to exclude a notable population who are also “victorious” in this suite, and who were represented by one of the three parties. It seems hard to believe he was unaware of this commission.

    What I mean is, in his attempt to appear gracious, he still couldn’t bring himself to congratulate trans people?

    What a knuckle dragging troglodyte.Report

  2. Doctor Jay says:

    [WW1] Given that Alito and Thomas were quite willing to strike down all of Obamacare on the basis of , “nyah, nyah, you wrote it wrong”, I mean textualism, their sudden conversion to purposivism is, ahem, unconvincing.

    Nothing about Kavanaugh’s opinion changes my assessment of him as a bootlicking people-pleaser.

    I think that it’s fair to ask why the SCOTUS didn’t use Gorsuch’s reasoning on prior cases. If memory serves, the CA Supreme Court did exactly that in striking down Prop 8. Maybe the simple answer for Gorsuch is, “they didn’t have me”.Report

  3. DensityDuck says:

    “Gorsuch points out that Title VII protects individuals, not groups.”

    An interesting bit of reasoning that, I think, will come back to bite them later. Because this suggests that the discriminatory effect which Title VII makes illegal is necessarily an individual act between employer and employee — that while I might fire Joe because he’s black, that implies nothing about what I’d do to Frank who is also black, so Frank can’t file any claims under Title VII. (Or that my refusal to fire Bluto for blustering on social media about the Demon Homosexual doesn’t constitute a Title VII violation because Bluto wasn’t referring to anyone specific at the workplace, or indeed to the workplace at all.)Report

    • CJColucci in reply to DensityDuck says:

      Frank can’t file any claims now. Not because the treatment of Joe “implies nothing” about the treatment of Frank — it could imply a great deal — but because the employer hasn’t done anything to Frank. Once the employer does do something to Frank, how the employer treated Joe, as well as how he treated Sam and Fred, who are white, will be a matter of great importance. Nothing in Justice Gorsuch’s opinion changes that.Report

  4. I have seen the suggestion that Gorsuch might be a genuine textualist, willing to go wherever it takes him regardless of personal whims. If so, he is the first in the history of the Republic. But it is an interesting thought. We will have many years of rulings to judge whether or not he is a genuine unicorn.Report

  5. Next, the employers revert to the argument that the drafters of Title VII had no intention of this result.

    I expect that few if any people involved with drafting the 14th thought it protected interracial marriage. Does that make Loving vs. Virginia invalid?Report

  6. WW5: There’s also talk about Trump trying to stop his niece’s upcoming book because it violates her NDA. (What, you don’t make your family members sign NDAs?)Report

    • greginak in reply to Mike Schilling says:

      His trying to stop bolton’s book might be one of the most epic adventures in paying for some lawyers second or third vacation houses ever.

      I’d also guess Niece Trump’s publishers and lawyers have already gamed out how the NDA thing will be the most epic publicity ever.Report

      • The previous best example was Fox trying to stop Al Franken from being mean to Bill O’Reilly.

        The most direct result of the suit was a windfall for Franken and his publisher, Penguin Group (USA). The book had originally been slated for release on September 22, 2003, but the publicity resulting from the suit prompted Penguin to move the release date up to August 21 and print an extra 50,000 copiesReport

  1. December 2, 2020

    […] funeral home that fired Aimee Stephens, the trans woman whose case was part of Gorsuch’s Bostock decision but died before the Court issued its ruling, will pay $250,000 to her surviving spouse and the ACLU […]Report