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Thursday, May 09, 2019

Empathy, LGBT rights, and employment discrimination

Rick Bales (Ohio Northern) predicts that SCOTUS will hold 6-3 that Title VII prohibits discrimination against LGBT employees as a form of sex discrimination. He predicts that the "defectors" will be the Chief and Kavanaugh--the Chief to avoid the institutional damage from a high-profile decision that appears politically motivated and Kavanaugh as a way to show himself as less political and because such a decision might reflect the empathy he espouses.

Posted by Administrators on May 9, 2019 at 08:18 PM in Employment and Labor Law, Howard Wasserman, Law and Politics | Permalink


Asher is correct.

"the Chief to avoid the institutional damage from a high-profile decision that appears politically motivated"

What makes this statement crazy is its pretense that the only institutional damage that counts is the damage the liberals see. But the 6-3 ruling Bales foresees would do tremendous institutional damage in the eyes of conservatives. Roberts would be wandering off into Souter territory.

Posted by: James | May 13, 2019 6:25:46 PM

Anything is possible, I suppose, but this would seem out of character for Kavanaugh (and to a lesser extent Roberts). The textualist arguments in this case seem weak, and the Oncale decision appears easy to distinguish. I have a hard time believing that Kavanaugh would abandon his textualist approach because of political concerns, particularly with the knowledge that doing so will not ingratiate him to the left in any way. Bales' post seems like wishful thinking, bolstered by a misreading of Kavanaugh's statements about cognitive empathy. If Kavanaugh writes/joins a decision on the basis outlined in Bales' post, I would say that Kavanaugh has significantly departed from the approach he adopted while on the DC Circuit and the Administration severely misjudged his adherence to textualism.

Posted by: TJM | May 10, 2019 10:39:40 AM

The Chief Justice will join Kavanaugh's concurrence. Gorsuch and Thomas will join Alito's dissent.

Posted by: Belt | May 9, 2019 11:24:01 PM

Interesting, he has certain point seemingly. Recently, justice Roberts asserted, I quote:

"We do not have Obama judges or Trump judges, Bush judges or Clinton judges,"



This is pretty rare. He is concerned indeed. All this is because of Trump and his aggressive attitude towards federal courts. Yet, he claims that, I quote:

Roberts appears to be very cognizant of the institutional damage the Court is suffering as it becomes increasingly clear that its decisions are politically motivated. He doesn’t want to be the Chief Justice on whose watch the Court loses the prestige it has built over the last nearly 250 years...

End of quotation:

But, what prestige ? Objectively, it is an excellent court. Even apolitical one ( basically ). But, the problematic prestige,has to do with fundamental issues. The system is screwed up. The president, is appointing judges ? And in accordance of course, with political affiliation. Justice Ginsburg has even asserted at the time, that:

She had been appointed by democrat president, and she won't quit before taking care of another democrat one, who would replace her, with an appropriate democrat judge of course.

What he can do, is to blame the divergence between federal constitution, and states constitutions. Or, simply showing that:

Almost 99 percent of rulings, have nothing to do with politics, but the public opinion, and the media, and even scholars, are rendering the 1 percent, hell on earth. That's it !!


Posted by: El roam | May 9, 2019 9:02:34 PM

I don't know if this prediction reminds me more of the innocuous but really bad motivated reasoning you see from fans of a heavy underdog sports team for why their team will win (stuff like "well, our best players were terrible in the last game, and those players have, historically in various [cherry-picked] instances, responded well to criticism [i.e., coincidentally had good games after playing bad ones], so they will inevitably play well in the next game"), or the more conspiratorial reasoning you see some fans give for why their team might win a game or the draft lottery ("the NBA wants a winner in New York, so it will fix the lottery to give us the #1 pick so we can take Zion Williamson"). Kind of a mix of both, honestly.

Posted by: Asher | May 9, 2019 8:30:17 PM

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