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Tuesday, June 16, 2020

Bad (and Pedantic) Legal Takes

I am not on Twitter but I lurk on public accounts, mainly to find news stories and events. One of my favorite is Bad Legal Takes, a collection of stupid statements (one cannot call them arguments) people make about law. It is refreshingly bipartisanly stupid. For every "Trump gets a third term because the impeachment undermined his first term" and "HIPPA prohibits Costco from making me wear a mask" there is a "you can't shout fire in a crowded theatre" and "Trump and Russia colluded, so Trump's SCOTUS appointments are null and void."

Here is one from yesterday, following Bostock, from user Jordan Brooks: Just a reminder, Supreme Court decisions are only binding to the parties before the Court. At the risk of being pedantic and rescuing Mr. Brooks' take from a meaning he likely did not intend or understand, he is sort of right if ultimately wrong. Either way, it is more complicated. And it shows why Kevin Walsh is right that judicial departmentalism reflects the way courts actually operate.

Brooks is correct as to the Court's judgment. The judgment allows three Title VII claims--Zarda's Estate against Altitude Express, Stephens' Estate against Harris Funeral Homes, and Bostock against Clayton County, Georgia--to go forward. And there is no guarantee any of the plaintiffs will win, given the difficulties all Title VII plaintiffs encounter. The judgment does not compel anyone else to do or refrain from doing anything. It does not stop another private employer from discriminating against an LGBTQ employee. It does not stop Clayton County from firing another LGBTQ employee. It does not compel the EEOC to begin pursuing sexual-orientation discrimination claims.

Brooks is sort-of correct as the Court's opinion. The opinion does not bind the EEOC in its internal operations. If the EEOC were to change its interpretation of Title VII and decline to pursue sexual-orientation discrimination as sex discrimination, the opinion would not prohibit that move. Nor does it compel other parts of the executive branch to adopt this understanding of sexual-orientation-as-sex for purposes of other laws. Nor, standing alone, does it compel Clayton County or another employer to act or refrain from acting in some way.

Where Brooks goes off the rails is that the Court's opinion does bind someone besides these parties--every court in the United States, federal and state. So Clayton County or another employer could fire an LGBTQ employee because they are LGBTQ. But they will be sued and they will lose in a lower court that is bound by the Bostock opinion as the controlling interpretation of Title VII.

So let's credit Brooks with a mediocre legal take rather than a bad legal take.

Posted by Howard Wasserman on June 16, 2020 at 09:36 AM in Howard Wasserman | Permalink



I saw this Bad Legal Takes tweet and immediately thought of your Fed Courts class

Posted by: Yosef Kudan | Jun 19, 2020 11:12:26 AM

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