Strict Scrutiny - Turd In The Punch Bowl

Episode Date: June 15, 2020

Leah, Melissa, and Kate offer a quick recap and analysis of the 6-3 opinion in Bostock v. Clayton County that came out this morning, ruling that LGBTQ are afforded workplace protections under Title VII.  Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back. This is Strict Scrutiny, a podcast so fierce it's fatal in fact. And this is a very special episode. June 15th, we are talking about a new opinion that we just got from the court, highly anticipated. So I'm Melissa Murray, and I'm joined today by...

I'm Kate Shaw. Hey, Melissa. Hey. And I'm Leah Whitman. And we're going to talk about this new opinion that we got in this trio of Title VII cases, Bostock, Zarda, and Stevens. So, Kate, you want to kick us off? Sure. So, listeners will obviously be familiar with these cases. These are three cases, two raising the question of whether discrimination on the basis of sexual orientation is prohibited by Title VII, which is the big federal anti-discrimination law, which contains, among other things, a prohibition on sex

discrimination. So two cases asking whether sexual orientation discrimination violates Title VII, and then a third case asking whether discrimination on the basis of gender identity also violates Title VII. So these were argued back in October, so we had a feeling they would be coming down any day now. And I think it was kind of anybody's guess how the cases were going to come down. majority that included the liberal justices and then also the chief justice found in pretty broad and categorical terms that this discrimination violates Title VII. So a big win. But Gorsuch, right? But Gorsuch. So we will have a fuller episode on Monday like we usually do, but we wanted to quickly recap some facets of the opinion, its possible implications, as well as some of the technical difficulties that the court had sharing the opinion with us

this morning. The refresh button heard round the world. Oh, my God. Do we want to start with those technical difficulties and then do the opinion? Can we just start there? Like, oh, my God, like you are grown ass adults. Why can't you get this opinion loaded? What is going on? It was so frustrating. have won. We are all refreshing the court's website. Everyone tried to open the opinion. At some point, you could only get the first page of the opinion. At other points, nothing of the opinion would load and it would just give you a blank screen. This lasted for upwards of- An hour. Maybe 35 minutes. No, longer than that. Longer than that. Well, different people were getting access at different times. I got the first page very quickly. And so I did see that it was a win for the plaintiffs. But all you get,

the first page is just the syllabus, right, which is prepared not by the justices or their chambers, but the reporter's office. And you don't ever want to rely on what's in a syllabus because there could be an error in it. It might not properly characterize the decision. But here, it seemed pretty clear that it was both sexual orientation and gender identity, both, yes, Title VII violation, but no author identified, no vote breakdown. It was like a half of the first page. So I felt like I did think I knew how the opinion came down, but we didn't know who the author was or anything else. And then somehow people were getting access to a little bit of the opinion. And so we're

screenshotting excerpts. So then quickly we all realized, okay, this is a Gorsuch opinion. And okay, this is a 6-3 opinion. And then finally around like 10-20 or 10-30, we got access to the full 172 pages in all of its glory. So that may have had something to do with, you know, this is an unprecedented experiment I think the court is engaged in doing everything remotely. Well, so partially the fact that maybe that many people were interested in and wanted to read the opinion, but also partially the fact that Justice Alito wrote a 100-page opinion, including this exceptionally lengthy appendix in which he included lists of statutes that might be implicated by the court's opinion, as well as images of draft cards. Justice Alito, by the way, was screamingly mad in this dissent. Yeah, yeah. This was what they say,

as you would say, a vehement dissent from Justice Alito. Yeah, in which he likened the majority opinion to a, quote, pirate ship. Yes, yes, that was amazing. That was good. It comes under a textualist flag, but it's really a pirate ship.

Because the majority opinion by Justice Gorsuch really is a self-consciously, purportedly textualist opinion. It very much adopts the framing that the plaintiff's lawyers, I would say in particular Pam Carlin, served up to the court, which is that discrimination on the basis of sexual orientation or gender identity is always bound up inextricably with sex discrimination. And the words of the statute themselves answer the entire question of the case. And Justice Gorsuch, in a way that I couldn't tell if it was kind of sincere or trolling, but cited Justice Scalia quite a bit, including some of his treated- That was the part I think that's where he lost it. I think that's what set off Alito. I don't think it was trolling. I mean, I actually think it was a fair comparison.

I mean, didn't Justice Scalia write on call? Yes. Oh, absolutely. No, the citations on call are, I think, required in the decision. But there are a couple of citations to his treatise reading statutes. And those, I think, were the references that Alito was responding to when he sort of raised this false flag objection to the Gorsuch opinion. So one of the things that the majority opinion does, and I think does really well is to sort of say, like, this isn't a frolic. This is sort of in keeping with the way the court has interpreted this statute in the past. So they cite to Phillips versus Martin Marietta, which was a motherhood discrimination statute. There is Manhart,

which is about women being charged more for pension contributions than men. And then Ancal, which is about a man on an oil rig being subjected to sexual harassment by his colleagues because he is not, quote unquote, manly enough. And that was written by Justice Scalia. And I think Justice Gorsuch is right. If you take all of those precedents into account, it's not like the court is going really far out on a limb here to say that although this isn't what the drafters might have had in mind in 1964 when they wrote that Title VII prohibits discrimination on the basis of sex, it certainly is in keeping with the spirit of the text because this is a form of sex-based discrimination, which I think is a fair way to read the opinion. My husband and I were going back and forth on this. Like, would Justice Scalia have come down in favor of this opinion? Well, the opinions are going back and forth on this, too. You know, you noted Justice Gorsuch cites Scalia's treatise.

Then the Alito dissent and the Kavanaugh dissent are like, well, Justice Scalia, the author of textualism, would not have done that. Right. And like they cite his opinions and like they are explicit in invoking what would Justice Scalia have done, which is kind of an odd approach for a textualist. Like it's not how would I read the statute according to his terms. I think it's about the sexual orientation. I mean, like, Justice Scalia was not in the majority in Obergefell, like, you know, had that blistering dissent in Lawrence. Unclear whether he would have been in Gorsuch's camp, textualism or no, in this particular decision. And they both seem to be fighting over his legacy. Like, what does it mean to be a textualist in the mode of a Justice Scalia? And, you know, according to Justice Gorsuch, maybe it doesn't mean much at all. Like, you know, maybe it's more like the legacy of Justice Gorsuch as a textualist now that really

holds sway. Or maybe he would say that sort of at his best, on his best days, Justice Scalia, I think, acting in a principled fashion would have joined the Gorsuch majority here. But that, you know, especially in the last 10 or 15 years of his time on the court, when I think that he kind of did stray from these methodological commitments in favor of a more kind of outcome-driven type of analysis, I think so. So maybe it depends on which Justice Scalia we're asking about. And that's actually why they're talking past each other when invoking Justice Scalia in their respective opinions. But that was definitely a fascinating undercurrent in the case. One thing I will say is, you know, it's striking that none of the liberals saw any need to write a separate concurrence, right? There was so little space between what Justice Gorsuch authored.

And I think what any of them, the style, of course, like the sort of ponderousness at points like that is a pure vintage Gorsuch. But the substance is what they would have written. But I think that's just like Obergefell. Maybe not quite. You know, they all kind of they wanted to speak in one voice about this. And then, you know, in Obergefell, like the one voice was one that was really pro marriage in a court where not everyone was married at that moment. And they just kind of went along with it. And maybe that's what you needed to do in order to get the chief. I mean, this was a 6-3 opinion. Maybe their silence was part of whatever negotiations took place in order to get the chief to come on board.

So the chief, you think, is the one who is more in question, I mean, as opposed to Gorsuch being up in the air and the chief assigning him the opinion to write himself convinced. I guess those are two possible theories of why the chief doesn't keep the opinion for himself. I agreed with you all when we talked about this earlier. I agreed with you all that Gorsuch looked like he was sort of the person in play. And the discussion about the bathroom at oral argument made him look a little wobbly. But I thought the chief was very firmly in the conservative camp on this. So that actually, to me, was the most surprising part of this decision. Yeah, I totally agree, especially because Justice Kavanaugh's dissent, I think,

was very similar in tone and in substance to the chief justice's dissent from Obergefell. You know, a couple of other things to flag, I would say, you know, it did feel to me as though even though Gorsuch talks about the employer's arguments, he's talking about the employer's and also the solicitor general's office's arguments, right? And, you know, the SG made this sort of odd argument that if you treated everyone equally badly, you discriminated against both gay men and women on the basis of sexual orientation, that would show that you were not engaging in sex discrimination. And, you know, he has this line in which he says, an employer who fires both lesbians and gay men equally doesn't

diminish but doubles their liability. And that did seem like squarely responding to the SG's argument. And I haven't seen any statement yet out of the Department of Justice or the Trump administration, but I really, I'm sure you as well, are just wondering what is going on internally as they respond to this decision. I'm sure the Civil Rights Division is just celebrating this decision off the charts. They're so thrilled. Well, I mean, just think about what happened last Friday when HHS released those regulations rolling back protections under the ACA for transgendered person. I mean, a lot of the logic of those regulations was identical to the logic of their arguments narrowing employment protections for transgender workers in this case. So, I mean, the fact that the court has put the kibosh on it here arguably calls into question the same narrowing that we're seeing

across other statutory contexts. Oh, I think clearly calls into question that rule that was issued last week. Yeah. If not, like facially invalidates it. So maybe there'll have to be some litigation or maybe they just pull it down. I don't think they pull it down. I think you go back to court. And then it falls very quickly. I don't think there's any other way. I mean, the one other thing maybe to flag that I sort of was waiting for the kind of, you know, where is the language that sort of parallels the Obergefell language about sort of protection for religious conscience and objections, right? And so, and there is a passage in this, in the Bostic opinion that looks somewhat like the Kennedy passage sort of reiterating support for religious liberty and kind of reserving future questions about the intersection of the constitutional holding in that case and the statutory holding here with religious liberty objections, but does say some sort of disconcerting things, calls RFRA a super statute that might supersede the commands of Title VII, you know, might, not does, but does signal that religious objections, which were not actually before the court in these cases,

even though the funeral home in the Harris case did raise those claims below, that those objections might fare well before this court in a follow on case. It's interesting because right now, you know, I'm just like I have one eye on the television screen and, you know, the media is really trumpeting this as a win for gay rights. And I think, you know, I don't want to be the turd in the punch bowl who's like like, but wait, like, it is a win. It's a really important case. It's a really important victory. But there's a lot buried in this opinion that I think could surface later in much more troubling and problematic ways. I mean, in the same way, like I was a turd in the punch bowl about Obergefell, like saying, you know, like, I'm not sure that Obergefell is. I thought you said you didn't want to be a turd in the punch bowl about Obergefell, like saying, you know, like, I'm not sure that Obergefell is, um, I thought you said you didn't want to be a turd in the punch bowl, Melissa. I mean, I just, again, I'm just sort of like this sort of over the top, you know, like woke Neil Gorsuch.

I don't think that's warranted here. And I think it is a victory, but you know, it's the beginning of June. There's more stuff coming and there's more room, I think. And I think there's room in this opinion to sort of narrow some of these gains. I think that's worth thinking about as well. And someone asked me, is this as important a decision as Obergefell? And, you know, I think it is as important. I mean, I think grown up adults are more likely to have jobs, like perhaps than get married and, you know, like are more likely to need the economic security that employment provides. And for a lot of people in states where they don't have state level anti-discrimination protections for sexual orientation or transgender identity, Title VII is the only game in town. And certainly that may be even doubly so for federal workers. So this is huge, but there's, dig into this opinion, and I think you will find the seeds for sowing more trouble in the future.

I think that that's right. And, you know, we don't have a ton of time right now, but the implications of this decision are something that I'm sure we will be talking more about when we do a longer in-depth recap. Can I say one more thing from the dissent, though, in terms of the sort of implications of this opinion? So Alito just kind of can't help himself. It's a little bit like the Scalia dissent from Windsor in which he's like, you know, so the Defense of Marriage Act or part of it has fallen. And it's just, you know, it's like a hop, skip and a jump to marriage equality being mandated by the Constitution. And like, you know, he writes a dissent that sort of paves, you know, it was going to happen regardless. But the dissent, I think, helps challengers

to state laws that at the time prohibited same-sex marriage. So Alito a little bit is sort of calling out this parade of horribles. And in one part of the opinion, he says, okay, this is a statutory holding, but it seems like there are seeds of sort of constitutional logic in it, such that claims, you know, constitutional claims that sexual orientation or gender identity discrimination violate the Equal Protection Clause seem like, on the logic of this opinion, would be hard to reject. And that, I think, is right, actually. There's a lot of constitutional equal protection logic in the opinion that I think could be extremely helpful to discrimination plaintiffs in other spheres. So hold up on that for a minute. So I think someone was saying on Twitter that that logic

could lead to sort of finding that sexual orientation or transgender identity was entitled to intermediate scrutiny. I'm clear if that's better or worse. Like, so my colleague at Berkeley, Russell Robinson, wrote this great piece in Stanford a couple of years ago, Unequal Protection, where, you know, he notes that a lot of the victories for gay plaintiffs have been under this rational basis with bite standard. And it's just more elastic and contextual and can lead you to the same outcomes but without hemming you in the way that the tiers of scrutiny can. And he was of the view, and I think he might be right, that it's almost better to be outside of the traditional tiers of scrutiny and equal protection logic. So I don't know. Maybe it's like if the seeds of intermediate scrutiny are being laid here,

maybe it's not a good thing at all. But there are still laws on the books and states on things like adoption that I think that ratcheting up the level of scrutiny in a formal way, it couldn't hurt the strength of those claims. Like how much it helps, I think, might be an open question, but it's hard for me to see how it hurts. But that's an interesting thought experiment. Well, but I think what it would hurt is it might call into question laws that are designed to remedy past discrimination in the same way that anti-classification principles have limited the ability to adopt race-conscious measures. But yes, so the Alito dissent had all kinds of Scalia vibes in it, partially in tone.

You mentioned Scalia's Windsor dissent, also the Lawrence dissent, where he said, well, this is paving the way to gay marriage. And it wasn't just the possible implications in constitutional cases where the majority opinion is saying all these things about how it's impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, which might trigger heightened scrutiny, but also in its implications for other statutes where, again, Justice Alito just lists all of these statutes. It's like, okay, prospective plaintiffs, are you interested in potentially challenging any of these? I did this great research project outlining this litigation strategy for you. He was obviously sort of spitting mad and obviously the crazy lengthy

appendix is evidence of that. It seems obvious to me that he would have dissented from the bench had this happened in normal times, right? So he would have given a bench statement. Not only would he have dissented from the bench, he would have lit Justice Gorsuch's opinion on fire, right? Or just torn it up like Nancy Pelosi style in the State of the Union. Rip it, rip it up. He probably has it as toilet paper in his chambers right now. Like just all kinds of craziness. But it did make me wonder about like what alternative expressive channels like really, really angry dissents, including, you know, others we could see in the next couple of weeks might pursue. Like, could we see justices cut like bench statement videos and like circulate those? A TikTok. Justice Alito's TikTok.

Oh my gosh. A Justice Alito TikTok. I am loving this, you know, because like all they have thus far is to crash the Supreme Court's website with like crazy long appendices. Oh, that would be the best if he was like, you will never get this opinion because I am secretly at home preventing you from doing it.

Exactly, exactly. That's what happened. As sad and angry as Sam Alito was, I think is as happy as some of us might be feeling. Because even though, you know, this opinion is certainly not going to solve all problems of discrimination, it is an important victory for individuals to have protections in the workplace and elsewhere. Yes. So anything else? Or should we call that a wrap? for individuals to have protections in the workplace and elsewhere. Yes. So anything else, or should we call that a wrap? I'm sure we'll do more on the regular weekly episode, but I think for this first installment of an emergency podcast episode, I think we got to call it a day here. But good to see you guys.

Good to see you guys. And congrats to everybody who worked unbelievably hard on this case. It was a really transformational effort. And I hope everyone stops to sort of spend a little bit of time with that victory. Thank you to our producer, Melody Raul, for quickly turning around this episode. Thank you to Eddie Cooper for making our music. And thank you to you all for listening. And thank you to Justice Gorsuch for creating the occasion for this emergency session. And thank you to Pam Carlin, as Justice Alito called her prominent constitutional law professor in his dissent. We'll talk more about that on the regular episode. See you next time, everybody.