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07/11/2020

Steven D. Smith on Bostock
Michael Ramsey

One more on Bostock v.Clayton County, from my USD colleague Steven D. Smith (at Law & Liberty): The Mindlessness of BostockFrom the introduction:

In Bostock v. Clayton County, as everyone by now knows, the Supreme Court ruled that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating based on sexual orientation or transgender status. Dissenting, Justice Samuel Alito pointedly accused the Court of legislating.

Alito was too kind. The Court did not merely transfer the legislative power from Congress, where the Constitution places it, to the judiciary. Rather, the Court moved the legislative power beyond the realm of mindful decision-making altogether. If we assume that Justice Neil Gorsuch was sincere in what he wrote for the Court (and I do), our governing law becomes mindless in a quite literal sense.

Ironically, this descent into mindlessness is the consequence of a prima facie admirable but seriously misconceived commitment to rule of law—a misconception closely associated with the “textualism” advocated by conservative champions like Justice Antonin Scalia and followers like Justice Gorsuch. In that sense, Bostock might be taken as a sort of reductio ad absurdum of the textualism that many legal conservatives have ill-advisedly embraced for a generation or more.

And from later on:

As of last month, in short, Congress had been presented with the question, had thought about it—and had decided not to adopt any prohibition. So the prohibition recognized in Bostock surely did not come from any mindful deliberation and decision by Congress.

Does it then at least reflect mindful deliberation and a decision by the Justices on the basic question—namely, whether the law should prohibit sexual orientation discrimination? Again, cynics may suggest that this is what happened. But Justice Gorsuch rejects any such description. According to Gorsuch, he and his colleagues are not themselves deciding whether sexual orientation should be protected against discrimination. Not at all. They are merely saying what “the law” is.

Whether federal law should prohibit sexual orientation discrimination has been a much-debated issue in our society. Now we have such a prohibition. But not because Congress deliberated and then decided to adopt it. And not (at least according to Gorsuch) because the Justices deliberated and decided to adopt it. What we have, it seems, is a highly consequential and controversial prohibition that is not the expression of a mindful decision by anyone.

Andrew Koppelman has a response at Balikinzation: Bostock and mindlessness.