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Topic: What's Your Favorite U.S. Supreme Court decision? (Read 755 times)

  • OakdaleFTL
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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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"Humor is emotional chaos remembered in tranquility." - James Thurber
"Science is the belief in the ignorance of experts!" - Richard Feynman
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  • OakdaleFTL
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Re: What's Your Favorite U.S. Supreme Court decision?
Reply #25
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.
The only speculation I've read about that is that it was proposed as a so-called poison pill - an amendment designed to make the law less likely to be enacted... (Not an unusual legislative tactic!)

I reject the contention of obscurity in language usage that makes personal interpretation the standard: that's no standard at all. And were it so, communication would be impossible. Translation from one language to another is more likely to be idiosyncratic. But among native speakers the Humpty Dumpty/Alice exchange in Through the Looking Glass doesn't seem profound but only silly.
That mores have changed in the 50-some-odd years since the law's passage, there's little doubt. That the usage originally encompassed and logically contains our modern peccadillos seems more than far-fetched: It seems perverse...
(It's that very perversity that makes the exchange so entertaining!)

Still, ersi is correct about the historical causes that bring us to this point.

Let's back up a bit:
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. (emphasis added)
But as ersi points out,

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?
Further:
ersi said on 2022-01-06, 00:56:29: "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.
In the American system the purpose of the higher courts is to resolve conflicts and controversies. As Gorsuch did with "but for sex" many attempt to do with "interpret"... ersi correctly shows that Gorsuch abrogates the Absurdity Doctrine.

In other words, Humpty Dumpty is headed for a great fall! And all the king's horses and all the king's men will be unable to put him back together again...

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.
You mean you reject their interpretation? Pray tell: What privileges your interpretation? Word games can only get you so far... :)
And "gender" is, the way you use it, a quite modern term.. Time was, it was but a grammatical category...
When the statute in question uses language easily understood on the basis of documented common usage and supported by contemporaneous reference works, what justifies the "new" interpretation?
What you call a "pretense" is merely an unpretentious reading of original text, eschewing flights of fancy.

It's telling that you'd rehash your example of the law against kidnapping from the 1600s to the 1900s:
How do you justify making the means of transport a "but-for"  element of the crime? (Remind me, please...)
  • Last Edit: 2022-01-06, 11:29:00 by OakdaleFTL
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"Humor is emotional chaos remembered in tranquility." - James Thurber
"Science is the belief in the ignorance of experts!" - Richard Feynman
 (iBook G4 - Panther | Mac mini i5 - El Capitan)

  • ersi
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Re: What's Your Favorite U.S. Supreme Court decision?
Reply #26
Oakdale, the problem is far beyond the interpretation of the word "sex". Luckily for Title VII, it specifies "in the workplace", so everything outside the workplace should be a non-issue.

In the workplace, as far as my experience goes (admittedly limited experience, as I have been a white-collar office employee all this century), sexual orientation does not even come up, so this kind of anti-discrimination law is futile. It's rather the other way - as soon as sexual orientation does come up, as in some colleagues display their orientation so that it affects the work environment, somebody is sure to get fired, i.e. absolutely discriminated against. Simply, there's no room for any sexual orientation whatsoever in the workplace.

For the sake of workplace, the law should better postulate something relevant to workplace, such as equal pay for the same tasks/position/title. But for some idiotic reason this point, even though at the forefront in real-life work environment, is left to "free market".

The law is messed up on this point, not on the word level, but on the section level or even on the principle level. Those whose job is to apply/interpret the law as written are f'd, fairly literally. Some judges try their best to not be ridiculous. The majority try their usual veiling of ulterior motives. None of them will admit the law is letting them down.

  • Frenzie
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Re: What's Your Favorite U.S. Supreme Court decision?
Reply #27
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.

The Dutch constitution phrases it as follows in article 1:
Quote
All persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on the
grounds of religion, belief, political opinion, race or sex or on any other grounds whatsoever shall not be
permitted.
Except when limited by law, if there is a proper justification for restricting it, as tested by the court. Ultimately that's the High Council if it makes it that far, or in arguably better English the Supreme Court.

I reject the contention of obscurity in language usage that makes personal interpretation the standard: that's no standard at all.
There is no obscurity. There is just thinking it through logically. Why are you discriminating against a crossdresser? Because they're wearing a dress or short hair. Would you discriminate against a woman wearing a dress? No? Then you're discriminating against the man wearing the dress based on their sex. You can't fit a pin between it. There is no question regarding the definition of sex here. There would be no discrimination but for sex. If you don't like it, blame the text of the law. It could've easily said something else, as I just quoted Gorsuch clearly explaining above.

But as ersi points out,
There would be no reason to be opposed to pedophilia if children could act as consenting adults. But that's neither here nor there. Legally speaking I doubt you could generally discriminate against someone just for having a sexual preference for children. Plainly put, if you see an attractive woman, do you proceed to rape her or do you just think to yourself it's an attractive woman? Unless the word pedophile here is intended to mean something like rapist or (child) abuser it is in fact more or less a sexual orientation, although I think handicap would be a better word than sexual orientation, particularly legally speaking. I.e., for a forklift driver the handicap of being a pedophile doesn't matter but for an elementary school teacher one imagines it does.

What privileges your interpretation?
Surely you have no less a problem rejecting my interpretation than I have rejecting yours. :) But I am dismayed that someone of your intelligence can read what Gorsuch wrote as well as what Alito wrote and not see that Alito is at best pretending Gorsuch didn't already more than disprove all his arguments with ample examples and precedents. There are no "word games" here, only proper applied philosophy based on the plain meaning of words.

A convincing objection to a proper principled textualist interpretation as per Gorsuch would be how @ersi once showed that I took Scalia too much at his word regarding the texts from the 18th century with regard to the Second Amendment. (I.e., that a well-regulated militia only ever meant something like the National Guard and that pretty much all 20th century SCOTUS decisions are a muddled mess.)

When the statute in question uses language easily understood on the basis of documented common usage and supported by contemporaneous reference works, what justifies the "new" interpretation?
This is the entire point. Gorsuch uses the ordinary meaning of sex and establishes how the ordinary meaning of sex entails discrimination based on sexual interest and outward appearance ("gender"). That is because but for sex, those behaviors aren't being targeted. A man interested in having sex with a woman isn't being targeted. A woman interested in having sex with a woman is. A woman wearing a dress isn't being targeted, but a man wearing a dress is. The behavior is identical, but for sex.

It's telling that you'd rehash your example of the law against kidnapping from the 1600s to the 1900s:
How do you justify making the means of transport a "but-for"  element of the crime? (Remind me, please...)
The point is that it doesn't matter whether anyone envisioned that men might want to wear dresses just the same as it doesn't matter whether anyone envisioned that people might be kidnapped in dirigibles. You can't point at an analogy and say that, aha, it doesn't apply outside of its constraints.

But that's just a generic remark. For kidnapping, it doesn't matter what you do but for transporting someone against their will. It doesn't matter if you're taking them in a suitcase where they can barely breathe or if you're kidnapping them in a dirigible of utmost luxury. Taking someone in a dirigible would be awesome but for the fact that you're doing it against their will. That's what makes it kidnapping, not the fact that you're being confined in uncomfortable circumstances.

Oakdale, the problem is far beyond the interpretation of the word "sex". Luckily for Title VII, it specifies "in the workplace", so everything outside the workplace should be a non-issue.
Only a limited number of workplaces too (i.e., certain industries, companies with more than 15 employees, and so on).

The law is messed up on this point, not on the word level, but on the section level or even on the principle level. Those whose job is to apply/interpret the law as written are f'd, fairly literally. Some judges try their best to not be ridiculous. The majority try their usual veiling of ulterior motives. None of them will admit the law is letting them down.
:up:
  • Last Edit: 2022-01-06, 12:43:36 by Frenzie