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Because I reject Gorsuch's dependence of a rigid Scalian textualism, and believe Scalia himself would have written a dissent even more wild than Alito's, I think the best and most honest opinions to read on Title VII/SOGI were Posner's CA7 concurrence and Lynch's CA2 dissent
Lynch: https://www.scotusblog.com/wp-content/uploads/2018/06/17-1623-opinion-below.pdf
Posner: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D04-04/C:15-1720:J:Wood:aut:T:fnOp:N:1942256:S:0
https://twitter.com/MikeSacksEsq/status/849447535370489858?s=20
Posner: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D04-04/C:15-1720:J:Wood:aut:T:fnOp:N:1942256:S:0
https://twitter.com/MikeSacksEsq/status/849447535370489858?s=20
Why yes, the four SCOTUS liberals who consistently reject the Scalian opposition to legislative history are now converts to the sainted conservative's canons of construction, while the three dissenting conservatives are now totally into legislative intent.
Right.
Right.
The decision served the interests of justice, and that work, however subjective, is the province of judges no matter how hard Scalia's ideological faction worked to convince the public that judges can't be trusted to judge.
But I think liberals, buying fully into the formalist Scalian textualism so to achieve justice here, made this out to be an easier case than it was by adopting a methodology they typically reject so to write off the legislative intent they often credit. https://twitter.com/MikeSacksEsq/status/1273255241509724162?s=20
So this case, in my mind, presented a clash between two valid views of judging: serving the interests of justice vs. respecting the political process. But it doesn't have to be a clash! The lines are blurry! And none of the SCOTUS opinions in Bostock accounted for that.
Instead, the opinions were more a fight over St. Scalia's eternal soul. https://twitter.com/MikeSacksEsq/status/1273258119532077056?s=20
The four liberals' silence in this case may have been the price they had to pay to keep Gorsuch and Roberts in the fold, or because they were being polite, or just happy to win. But they did the rest of us a disservice by not articulating a progressive reasoning for their result.
Meanwhile conservatives' dismay towards Gorsuch proves their promoting originalism/textualism as the One True Way was a but a fig leaf to be ripped off when it fails to recognize GOP policy preferences as the only legitimate way to read the constitution https://reason.com/2020/06/17/anonymous-reactions-to-bostock/
Here's Gorsuch at his confirmation hearings paraphrasing Scalia: "For the truth is, a judge who likes every outcome he reaches is probably a pretty bad judge, stretching for the policy results he prefers rather than those the law compels."
Y'all really think Gorsuch PREFERRED the policy result he reached in Bostock?
Come on.
He was exercising his Scalian Orthodoxy.
Also, virtually every FedSoc judge sitting before the Judiciary Committee trots out the same axiom. https://twitter.com/MikeSacksEsq/status/1273313499826065408?s=20
Come on.
He was exercising his Scalian Orthodoxy.
Also, virtually every FedSoc judge sitting before the Judiciary Committee trots out the same axiom. https://twitter.com/MikeSacksEsq/status/1273313499826065408?s=20
So either none of you believe this because you believe Scalia didn't believe this and are fine perjuring yourselves in service to the counter-reformation, or you just think those occasional apostasies shouldn't apply to the issues you *really* care about? https://twitter.com/MikeSacksEsq/status/1273313947349856256?s=20
My view?
Scalia picked his heresies (flag burning, crimpro) carefully and used them as PR for his ostensibly neutral methodologies.
Gorsuch understands St. Scalia's example as a command to commit the rare heresies compelled by the One True Way, no matter the issue.
Scalia picked his heresies (flag burning, crimpro) carefully and used them as PR for his ostensibly neutral methodologies.
Gorsuch understands St. Scalia's example as a command to commit the rare heresies compelled by the One True Way, no matter the issue.
But the rest of Gorsuch's generation, and definitely the generation after, only pay lip service to possible heresies at confirmation as a way to please the olds--sort of like pledging fealty to "judicial restraint"--before obtaining the power to further their ideological agenda.
Gorsuch sees the conservative project's legitimacy strengthened by his sincerely-held heresy in Bostock.
He's not like Roberts, trying to protect institutional capital to push the law to the right.
He's a conservative evangelist who wants converts to Scalian orthodoxy.
He's not like Roberts, trying to protect institutional capital to push the law to the right.
He's a conservative evangelist who wants converts to Scalian orthodoxy.
The new conservative vanguard, though, isn't concerned with legitimacy. They now possess the power they worked towards for 50 years and through multiple heartbreaks. They're not gonna let orthodox Scalian methods get in the way of results *they* know the real Scalia would reach.
Anyway, this is all dumb because it's prob never gonna happen again and he's gonna make it all better in the end https://twitter.com/MikeSacksEsq/status/1272907616986042370?s=20
