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Archive for June, 2020

Gorsuch

Justice Gorsuch, U.S. Supreme Court

Bostock v. Clayton County, U.S. Supreme Court Case No. 17-1618 (June 15, 2020), is without doubt a milestone in the history of civil rights in the United States. The U.S. Supreme Court made the right decision. As the several recent police murders of black Americans has shown, there remains much work to be done in achieving equal justice under law for all Americans. Still, with Bostock the LGBTQ community can take at least take some comfort that the law is moving in the right direction. In these dark days of the Trump administration, that’s saying something.

However, the media has gone overboard in its praise of Justice Gorsuch, who is Trump’s first appointment to the Court. In particular, the media expresses surprise that the decision was 6-3 for Bostock, the plaintiff. The media asserts that those Republicans who have defended Trump because they want reliably conservative judges on the federal bench must be very disappointed. And, in fact, some are.

Charlemagne crowning

Detail of Media crowning Justice Gorsuch [prematurely] Liberal Judge of the Year, 2020

Before the Gorsuch hagiography gets much deeper, remember that you heard it here first: at some future date Gorsuch will issue an opinion that will incense everyone who’s not a Republican. (I almost said “conservative Republican,” but that would be redundant.) When it comes to interpretation of statutes and the U.S. Constitution, Gorsuch is a self-proclaimed “textualist” or “textual originalist” in the same vein as the late Justice Antonin Scalia. Recall that at his confirmation hearings in 2018 Gorsuch refused to comment on whether he believes three landmark cases were correctly decided: Brown v. Board of Education, 347 U.S. 483 (1954) (prohibiting racial segregation in public schools); Griswold v. Connecticut, 381 U.S. 479 (1965) (married couples have a constitutional right to use contraception); and Eisenstadt v. Baird, 405 U.S. 438 (1972) (unmarried couples have the same constitutional right as married couples to use contraception).

Keep those cases in mind.

Textual originalists like Gorsuch and the late Scalia portray themselves as completely passive, absolutely objective interpreters of statutes and the Constitution because they restrict themselves to the words in the text of the statute or Constitution — nothing more, nothing less. Anything outside the text is off limits, especially the legislative history.

The “originalism” part derives from their claim that the words in the statutory or constitutional text must be given the meanings they had when the text in question became law. The Scalia/Gorsuch textualist school wants to be sure to use the meanings at the time the text was enacted because that’s the only way, in their view, that the original intent of the language can be maintained from age to age. Changes in the use of language cannot be allowed to corrupt the original meaning of the text.

Gorsuch’s opinion is an authentic result of a textual originalist’s reading of the text of the 1964 Civil Rights Act. Still, the decision has startled Trump’s Republican supporters who counted on his judicial nominees to sock it to groups that they don’t like, such as the LGBTQ community.

But the most serious consequences are yet to come. Brown v. Board of Education prohibited racial discrimination in public schools and did so on the basis of the 14th Amendment to the U.S. Constitution. But when the 14th Amendment was adopted in the years immediately after the Civil War, “equal protection of the laws” most certainly did not refer to prohibiting racial segregation. It referred to protecting the recently freed slaves from the depredations of the Ku Klux Klan. Cases such as Plessy v Ferguson, 163 U.S. 537 (1896), which upheld racial segregation on a “separate but equal” basis, make that quite clear. Brown implicitly overruled Plessy, holding that “separate but equal” is inherently unequal.

The problem for textual originalists like Gorsuch is that under their theory the 14th Amendment must be read and interpreted as it would have been understood during the period of Reconstruction after the Civil War. At that time, protection of the freed slaves from raids and lynchings by masked horsemen in the states of the old Confederacy was what the 14th Amendment was all about. Nothing in the 14th Amendment mandates a prohibition of racial discrimination. Accordingly, under the Gorsuch textual originalism doctrine, Brown v Board of Education was wrongly decided.

If Gorsuch gets the chance, I predict he’ll vote to overrule Brown v Board of Education.

And let’s not forget the other two cases Gorsuch refused to talk about at his 2018 confirmation hearing, Griswold and Eisenstadt.¬† The decisions upholding constitutional rights in these cases are based on a citizen’s right to privacy. You can read the U.S. Constitution and all the Amendments forwards, backwards and upside-down, and you will not find any “right to privacy” in the text.

Accordingly, under the Gorsuch textual originalist approach, Griswold and Eisenstadt were wrongly decided, and should be overruled. At some point in the future, with Gorsuch on the bench, we may soon be saying goodbye to the constitutional right to use contraception.

If ever there were an artful dodger, Gorsuch is it. Had he given straight answers to the questions asked during his confirmation hearing, he would have told them that he believed Brown, Griswold and Eisenstadt were wrongly decided and should be overruled. He has to either admit that or become an apostate to his own textual originalist faith.  Imagine the uproar if, instead of being the shriveling coward that he his, during his confirmation hearing Gorsuch had answered questions honestly and forthrightly.

As the say in the commercials, “but that’s not all!” One hundred years ago, the 19th Amendment gave women the right to vote. Voting and holding public office are two very different things. Nothing in the text of the U.S. Constitution contemplates that a woman might hold public office in the federal government. Search all you want, but all the references are to males. Any sensible person with two gray cells to his name would tell you that a woman can, indeed, become president of the United States or be elected to Congress. But if you’re Gorsuch, Hillary couldn’t be president even if she’d won the electoral college back in 2016. Why? Because the text of the U.S. Constitution nowhere mentions female federal office holders. Voting? Fine. Office-holding? Not under Gorsuch. Doesn’t that sound ridiculous?¬†Certainly, but then again everybody thought Trump was a joke.

Remember, you heard it here first: the exaggerated praise of Gorsuch is sorely misplaced, and many from the center-right to the left will someday tear their hair and rend their garments over a bass-ackward textualist decision by Gorsuch.

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The_Leopard

Burt Lancaster in the role of Don Fabrizio in the film The Leopard (1963)

These times remind me of the words of Don Fabrizio toward the end of Lampedusa’s novel The Leopard:

“Se vogliamo che le cose restino come sono, le cose dovranno cambiare.” (“If we want things to stay as they are, everything will have to change.”)

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