Bench Memos

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Those Retaliation Rulings


Bless Ed Whelan for reading those cases from Tuesday on retaliation-is-discrimination.  Now I don’t have to!  I think Ed is right that they show “how easily incoherent liberal precedents can become entrenched.”  More than entrenched–built upon until we have edifices of precedent more and more distant from the original statutes.  I will only add that there’s good news and bad news here.  The good news is that these are readings of statutes, subject to correction by the Congress at any time.  In fact that’s one reason the precedents get entrenched, on the theory held by the justices that if they had this all wrong, Congress would come in and fix it.  The bad news is that that’s mostly a theory and not very accurate when it comes to practice, particularly when it comes to anything remotely having to do with “civil rights” or discrimination.  When Congress legislates a narrow range of rights under discrimination law, it looks pretty good because previously those rights didn’t exist at all.  But when the Court distorts the statutes and expands that range of rights, Congress is loath to pass any corrective legislation because then it looks like it is taking something away that it was (allegedly) responsible for creating in the first place.  I think the barely-permissible PC expression for what this would look like is “Native-American-giver.”  And Congress doesn’t want to appear in that light.


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