Bostock May Hint at Overturning Affirmative Action

[Kingpoleon]

Cass Sunstein: The textualism of Bostock may spell the end of affirmative action.

In 1979, the Supreme Court ruled that notwithstanding its text, Title VII of the Civil Rights Act of 1964 permits affirmative action. The court referred to a “familiar rule that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers."

Interpreting the same statute, Justice Gorsuch’s opinion comes from a different legal universe. It emphasizes the text, not the intentions of those who wrote it. It does not speak of the law’s spirit or purposes. If you read Gorsuch, you would think that affirmative-action programs are doomed, because they plainly discriminate because of race.

Which brings us to the key passage. As Justice Gorsuch put it, to discriminate is to treat an “individual worse than others who are similarly situated.” In what might easily be taken as a slap against affirmative action, he added that the text means that the judges’ “focus should be on individuals, not groups.”

https://www.bloomberg.com/opinion/articles/2020-08-23/biden-may-end-up-being-post-pandemic-wartime-president

[StateBoiler]

In what might easily be taken as a slap against affirmative action, he added that the text means that the judges’ “focus should be on individuals, not groups.”

Very libertarian point of view. Pulled from the LP's platform, key point in bold:

1.0 Personal Liberty

Individuals are inherently free to make choices for themselves and must accept responsibility for the consequences of the choices they make. Our support of an individual’s right to make choices in life does not mean that we necessarily approve or disapprove of those choices. No individual, group, or government may rightly initiate force against any other individual, group, or government. Libertarians reject the notion that groups have inherent rights. We support the rights of the smallest minority, the individual.

[politicallefty]

This will depend on whether or not Roberts wants to overturn recent precedent. It's possible he does though because it's apparent that these sort of racial issues are something he's very passionate about. It's one of a very few cases where I hope the conservatives win. I don't believe it is constitutional, nor do I even believe it is good policy.

[MarkD]

So long as we have nine politically-minded Supreme Court Justices, which we do now and have had for decades, instead of nine objective interpreters of law, then in the short term, the five conservative Justices -- Roberts, Thomas, Alito, Gorsuch, and Kavanaugh -- will probably strike down every Affirmative Action program that they look at, and the four liberals will dissent. Whether they're "textualists" is and will be basically beside the point. But suppose that Democrats win the presidential election three or even four times in a row, from 2020 to 2032. Clarence Thomas may have no other choice than to see himself replaced by a far more liberal, egalitarian-minded Justice, like Thomas's own predecessor Thurgood Marshall. Along with liberals replacing Ginsburg and Breyer, that would make five liberals on the Court, which hasn't happened since the 1960s, and they could go right ahead and contradict the string of conservative precedents and allow a full-blown reinstatement of Affirmative Action all over again.

[Kingpoleon]

So long as we have nine politically-minded Supreme Court Justices, which we do now and have had for decades, instead of nine objective interpreters of law, then in the short term, the five conservative Justices -- Roberts, Thomas, Alito, Gorsuch, and Kavanaugh -- will probably strike down every Affirmative Action program that they look at, and the four liberals will dissent. Whether they're "textualists" is and will be basically beside the point. But suppose that Democrats win the presidential election three or even four times in a row, from 2020 to 2032. Clarence Thomas may have no other choice than to see himself replaced by a far more liberal, egalitarian-minded Justice, like Thomas's own predecessor Thurgood Marshall. Along with liberals replacing Ginsburg and Breyer, that would make five liberals on the Court, which hasn't happened since the 1960s, and they could go right ahead and contradict the string of conservative precedents and allow a full-blown reinstatement of Affirmative Action all over again.

The frequent overruling of previous decisions, in the words of Justice Owen Roberts, “tends to bring adjudications of this tribunal into the same class as a restricted railroad ticket: good for this day and train only."

[politicallefty]

I'm not sure and I mostly say that because of what Roberts did in the recent abortion case (June Medical), joining the liberals strictly for reasons of stare decisis (on that you have to give him credit for honestly because he was very clear about that in his confirmation hearings). That may be an extreme case because it was asking the Court to uphold a law that was almost verbatim to a law that was struck down four years prior. I have to believe Roberts was offended since the only thing that changed in those four years was the composition of the Court. That's the exact kind of politicization of the courts that he can't stand.

I suppose it could be different for affirmative action since the facts of any future case would be quite different, but any decisions would be more narrowly tailored. I don't expect affirmative action to fall in one fell swoop anymore than I do Roe v. Wade. That's not really the style of this Court. If any case is to make its way up to SCOTUS in the next couple years, it could very well be California if voters decide to repeal Prop 209 and reinstate affirmative action (although I hope it fails, I have a feeling it will pass).

[MarkD]

So long as we have nine politically-minded Supreme Court Justices, which we do now and have had for decades, instead of nine objective interpreters of law, then in the short term, the five conservative Justices -- Roberts, Thomas, Alito, Gorsuch, and Kavanaugh -- will probably strike down every Affirmative Action program that they look at, and the four liberals will dissent. Whether they're "textualists" is and will be basically beside the point. But suppose that Democrats win the presidential election three or even four times in a row, from 2020 to 2032. Clarence Thomas may have no other choice than to see himself replaced by a far more liberal, egalitarian-minded Justice, like Thomas's own predecessor Thurgood Marshall. Along with liberals replacing Ginsburg and Breyer, that would make five liberals on the Court, which hasn't happened since the 1960s, and they could go right ahead and contradict the string of conservative precedents and allow a full-blown reinstatement of Affirmative Action all over again.

The frequent overruling of previous decisions, in the words of Justice Owen Roberts, “tends to bring adjudications of this tribunal into the same class as a restricted railroad ticket: good for this day and train only."

I said contradict, not overrule. The Court has been known to contradict its own precedents without overruling them. For example, the Court's decision in Buck v. Bell upheld a law providing for the compulsory sterilization of people who were severely retarded ("feeble-minded" in the language of the time), and nowhere in the opinion does the Court say or imply that being able to reproduce is a fundamental right. But several years later, in Skinner v. Oklahoma, the Court struck down a statute that provided for the compulsory sterilization of persons convicted of two or more felonies that involve moral turpitude. In Skinner the Court did say that being able to reproduce is a fundamental right. The Skinner Court was effectively contradicting the Buck decision, but the Skinner opinion did not overrule or find any error in the Buck decision.

I was simply saying that the team of Roberts, Thomas, Alito, Gorsuch, and Kavanaugh could strike down every Affirmative Action program they look at (and they might do so either by their interpretation of the Civil Rights Act or by their invocation of the Equal Protection Clause of the Fourteenth Amendment), but that when Thomas is replaced by a liberal, a new liberal majority on the Court might contradict the decisions rendered by Roberts, Thomas, Alito, Gorsuch, and Kavanaugh and herald in a whole near era of newly allowed Affirmative Action programs. The liberals can contradict the conservatives without overturning any of the conservative precedents.

[politicallefty]

I was simply saying that the team of Roberts, Thomas, Alito, Gorsuch, and Kavanaugh could strike down every Affirmative Action program they look at (and they might do so either by their interpretation of the Civil Rights Act or by their invocation of the Equal Protection Clause of the Fourteenth Amendment), but that when Thomas is replaced by a liberal, a new liberal majority on the Court might contradict the decisions rendered by Roberts, Thomas, Alito, Gorsuch, and Kavanaugh and herald in a whole near era of newly allowed Affirmative Action programs. The liberals can contradict the conservatives without overturning any of the conservative precedents.

How do you view what Roberts did in June Medical? That was a clear open point for this new conservative majority to establish itself on abortion, yet Roberts refused on the grounds of stare decisis. It was a process win for proponents of abortion rights, but Roberts seemed irritated at how it got to the Court in the first place. Those arguing in support of the law had nothing new except a new composition on the Court. Roberts will do his best to stop that sort of politicization.

[NewYorkExpress]

Yeah, the most likely outcome is Roberts sides with the liberals.

Assuming Biden wins and he appoints RBG's replacement...that could change things a bit, but not enough here.

[MarkD]

I was simply saying that the team of Roberts, Thomas, Alito, Gorsuch, and Kavanaugh could strike down every Affirmative Action program they look at (and they might do so either by their interpretation of the Civil Rights Act or by their invocation of the Equal Protection Clause of the Fourteenth Amendment), but that when Thomas is replaced by a liberal, a new liberal majority on the Court might contradict the decisions rendered by Roberts, Thomas, Alito, Gorsuch, and Kavanaugh and herald in a whole near era of newly allowed Affirmative Action programs. The liberals can contradict the conservatives without overturning any of the conservative precedents.

How do you view what Roberts did in June Medical? That was a clear open point for this new conservative majority to establish itself on abortion, yet Roberts refused on the grounds of stare decisis. It was a process win for proponents of abortion rights, but Roberts seemed irritated at how it got to the Court in the first place. Those arguing in support of the law had nothing new except a new composition on the Court. Roberts will do his best to stop that sort of politicization.

Given that the Louisiana law was so strikingly similar to the Texas law that was struck down in Whole Woman's Health v. Hellerstedt, I understand why Roberts did what he did. But he clearly has the opportunity to rule the abortion is not, in any way, a constitutionally protected right when the Court is faced with a new kind of abortion restriction that is different in kind from the laws that were examined in June Medical and WWH. With Kavanaugh being more anti-Roe than Kennedy had been, I think the time will come soon for Roe v. Wade and Planned Parenthood v. Casey to finally be overruled, as they should be.

[politicallefty]

Given that the Louisiana law was so strikingly similar to the Texas law that was struck down in Whole Woman's Health v. Hellerstedt, I understand why Roberts did what he did. But he clearly has the opportunity to rule the abortion is not, in any way, a constitutionally protected right when the Court is faced with a new kind of abortion restriction that is different in kind from the laws that were examined in June Medical and WWH. With Kavanaugh being more anti-Roe than Kennedy had been, I think the time will come soon for Roe v. Wade and Planned Parenthood v. Casey to finally be overruled, as they should be.

I'm not going to talk about my own views about Roe v. Wade or abortion rights. So long as the current composition/ideological balance of the Court stands, Roberts won't explicitly overrule Roe or Casey. I think they'll chip away at it, especially if new forms of anti-abortion legislation reach the Court. SCOTUS will do everything it can to avoid the broader issue. That includes things like the Alabama law from last year and things like heartbeat bills. Roberts plays the long game and outright overturning Roe/Casey would upset the status quo far too much and would probably provoke Democrats into supporting expansion of the Court. That is an issue that would do it for Democrats and probably the American people as a whole. They'll start at the outer edges and work their way in. I have a feeling they'll start at upholding a ban at a certain amount of weeks (but not 6 or whatever the heartbeat bans want).

[Donerail]

This is the patented "Roberts two-step," where he sides with liberals on a high-profile case while also, either simultaneously or later on, effectively undermining the victory. The classic (and recent) example is Bostock itself: Roberts joins a 6-3 majority and assigns the case to Gorsuch, who writes a fairly narrow opinion affirming gay rights; at the same time, Roberts finds (in cases like Little Sisters of the Poor, Masterpiece Cakeshop and Hobby Lobby) an extraordinarily broad religious exemption from otherwise binding laws that effectively guts the protections established in Bostock. It would not be surprising to see the same thing happen in any upcoming abortion cases; it's a very clever way to move the law to the right without incurring significant public backlash, and while it's earned Roberts the enmity of conservatives at the moment, I'd be shocked if he isn't viewed as one of their most effective jurists twenty years down the road.

[MarkD]

This is the patented "Roberts two-step," where he sides with liberals on a high-profile case while also, either simultaneously or later on, effectively undermining the victory. The classic (and recent) example is Bostock itself: Roberts joins a 6-3 majority and assigns the case to Gorsuch, who writes a fairly narrow opinion affirming gay rights; at the same time, Roberts finds (in cases like Little Sisters of the Poor, Masterpiece Cakeshop and Hobby Lobby) an extraordinarily broad religious exemption from otherwise binding laws that effectively guts the protections established in Bostock. It would not be surprising to see the same thing happen in any upcoming abortion cases; it's a very clever way to move the law to the right without incurring significant public backlash, and while it's earned Roberts the enmity of conservatives at the moment, I'd be shocked if he isn't viewed as one of their most effective jurists twenty years down the road.

Roberts is hardly the only two-stepper. Both Justices Kennedy and O'Connor had shown some support for gay rights and gay equality with their votes, and Kennedy's opinion, in Romer v. Evans, and they both wrote opinions to strike down Texas's sodomy law in Lawrence v. Texas. But both of them were part of the majority in Boy Scouts of America v. Dale, which was a conservative decision in favor of the First Amendent rights of the Boy Scouts to discriminate against gay men like James Dale. And Kennedy wrote the Masterpiece Cakeshop decision that you mentioned, which itself is a masterpiece of two-stepping, trying to simultaneously show sympathy to both the religious rights of the cakeshop owner and the right of gay people to be protected by state non-discrimination laws that protect gays.

[Kyle Rittenhouse is a Political Prisoner]

So long as we have nine politically-minded Supreme Court Justices, which we do now and have had for decades, instead of nine objective interpreters of law, then in the short term, the five conservative Justices -- Roberts, Thomas, Alito, Gorsuch, and Kavanaugh -- will probably strike down every Affirmative Action program that they look at, and the four liberals will dissent. Whether they're "textualists" is and will be basically beside the point. But suppose that Democrats win the presidential election three or even four times in a row, from 2020 to 2032. Clarence Thomas may have no other choice than to see himself replaced by a far more liberal, egalitarian-minded Justice, like Thomas's own predecessor Thurgood Marshall. Along with liberals replacing Ginsburg and Breyer, that would make five liberals on the Court, which hasn't happened since the 1960s, and they could go right ahead and contradict the string of conservative precedents and allow a full-blown reinstatement of Affirmative Action all over again.

Unless the 2020s are a realignment to Democrats on a pretty massive scale, Republicans will win back the Senate by 2026 at the latest.

[Kingpoleon]

Roberts is hardly the only two-stepper. Both Justices Kennedy and O'Connor had shown some support for gay rights and gay equality with their votes, and Kennedy's opinion, in Romer v. Evans, and they both wrote opinions to strike down Texas's sodomy law in Lawrence v. Texas. But both of them were part of the majority in Boy Scouts of America v. Dale, which was a conservative decision in favor of the First Amendent rights of the Boy Scouts to discriminate against gay men like James Dale. And Kennedy wrote the Masterpiece Cakeshop decision that you mentioned, which itself is a masterpiece of two-stepping, trying to simultaneously show sympathy to both the religious rights of the cakeshop owner and the right of gay people to be protected by state non-discrimination laws that protect gays.

The odd thing is that it would be much more consistent to rule against anti-discrimination laws as a whole as a violation of freedom of association, rather than to write out religious exemptions to them. Of course, that’s not something conservatism currently supports, so they don’t.

[Coolface Sock #42069]

In what might easily be taken as a slap against affirmative action, he added that the text means that the judges’ “focus should be on individuals, not groups.”

Very libertarian point of view. Pulled from the LP's platform, key point in bold:

1.0 Personal Liberty

Individuals are inherently free to make choices for themselves and must accept responsibility for the consequences of the choices they make. Our support of an individual’s right to make choices in life does not mean that we necessarily approve or disapprove of those choices. No individual, group, or government may rightly initiate force against any other individual, group, or government. Libertarians reject the notion that groups have inherent rights. We support the rights of the smallest minority, the individual.

A bit off topic, but I’d really like to see the Republicans put this in their platform.