2018—If the transnationalists have their way, look for a ruling like this to come our way soon: The Colombia Supreme Court rules that the Amazon river is a rights-bearing entity and that environmental activists can sue on its behalf to enforce its rights. The court orders Colombian governmental authorities to formulate a series of action plans to combat deforestation and climate change.
1939—Two weeks after President Roosevelt nominates SEC chairman (and former Yale law professor) William O. Douglas to the Supreme Court, the Senate confirms the nomination by a 62-4 vote. On the Court from 1939 until 1975, Douglas will become the longest-misserving justice in history.
2017—“The goalposts have been moving over the years,” asserts the en banc Seventh Circuit majority in Hively v. Ivy Tech Community College. Overriding its own precedent and contradicting nine other circuits, the majority holds that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII.
In a separate concurring opinion, Judge Richard A. Posner, advocating a “form of [statutory] interpretation” that he labels “judicial interpretive updating,” states that he “would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted.”
In her dissent, Judge Diane S. Sykes, joined by two colleagues, explains that “we do not sit as a common-law court free to engage in ‘judicial interpretive updating,’ as Judge Posner calls it, or to do the same thing by pressing hard on tenuously related Supreme Court opinions, as the majority does.”
Judge Justin Walker is President Trump’s nominee to the U.S. Court of Appeals for the D.C. Circuit. Walker is currently a federal district judge in the Western District of Kentucky. President Trump also nominated Walker to his current post, and he was confirmed by the Senate in October 2019.
If confirmed to the D.C. Circuit, Walker would follow in the footsteps of other judges nominated to the prestigious court from outside Washington, D.C., including David Sentelle from North Carolina (appointed by president Ronald Reagan), Karen Henderson from North Carolina (appointed by president George H.W. Bush), and Janice Rogers Brown from California (appointed by president George W. Bush).
Walker was raised in Louisville, Kentucky by his single mother who owned and ran a stationery store. Neither Walker’s mother nor his grandparents attended college. Growing up, Walker attended Catholic school for 13 years, graduating from Louisville St. Xavier High School. He went on to attend Duke University, where he majored in political science and was a member of Phi Beta Kappa, graduating summa cum laude. Walker similarly excelled at Harvard Law School, where he earned magna cum laude honors and served as the notes editor of the Harvard Law Review. Walker was also a member of the editorial board for the Journal of Law & Public Policy, a leading journal for conservative and libertarian scholarship. He also served on the executive board of the Harvard chapter of The Federalist Society.
After law school, Walker clerked for Judge Brett Kavanaugh on the D.C. Circuit (2010-2011) and Justice Anthony Kennedy on the Supreme Court (2011-2012). Both before and after his clerkships, Walker worked as an associate at Gibson Dunn LLP in Washington, D.C. His practice focused on complex commercial litigation and appeals, and Walker assisted in the drafting of five briefs in cases before the U.S. Supreme Court.
In 2013, Walker moved home to Kentucky, where he maintained a solo law practice before joining the faculty of the University of Louisville Brandeis School of Law in 2015. At Brandeis Law School, Walker focused his research on separation of powers issues, federal courts, administrative law, and national-security law. Walker was a co-founder of the Ordered Liberty Program at Brandeis Law School — a fellowship devoted to the study of “federalism, separation of powers, originalism, natural rights, and the common good.”
Walker’s scholarship has been published in academic journals such as the George Washington Law Review, the University of Cincinnati Law Review, and the West Virginia Law Review. In 2018, in the wake of the firing of James Comey, Walker argued against making the FBI an independent agency because such unchecked power could pose a threat to civil liberties. Walker’s most recent academic article examines the problems with the administrative state from an originalist perspective, particularly with respect to the lack of democratic accountability.
Walker was a staunch supporter of Brett Kavanaugh during his nomination to the Supreme Court. Walker wrote in National Review that Kavanaugh was a “a steadfast and fearless supporter of religious liberty.” Likewise, in The Federalist, Walker described Kavanaugh as having “the strongest, most consistent, most fearless record of constitutional conservatism of any federal court of appeals judge in the country.”
Before he became a district court judge, Walker served for six years as the volunteer executive director and legal counsel for the Global Game Changers Student Empowerment Program, a non-profit for underserved elementary school children. Walker also supervised a program that taught writing skills to underserved high school juniors at a public high school in Louisville.
In 2011, Walker was named to Forbes’ “30 Under 30” list for law and public policy. He has also been an active member of the Federalist Society, serving on the executive board of the Louisville chapter before his confirmation to the district court.
Judge Walker is married and has a daughter.
Harvard Law professor Adrian Vermeule has written an essay in The Atlantic that argues for doing away with originalism in favor of “a robust, substantively conservative approach to constitutional law and interpretation.” He calls this alternative approach “common-good constitutionalism,” the controlling principle of which is “that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate.”
More specifically, “Unions, guilds and crafts, cities and localities, and other solidaristic associations” and the traditional family “will benefit from the presumptive favor of the law.” Vermeule’s approach would do away with what he calls “the libertarian assumptions central to free-speech law and free-speech ideology” and to “property rights and economic rights.” It would “favor a powerful presidency ruling over a powerful bureaucracy, the latter acting through principles of administrative law’s inner morality.”
Where to begin? Well, part of Vermeule’s problem is the premise with which he begins — that originalism “has now outlived its utility.” During the 1970s and 1980s, he argues, that approach to constitutional interpretation “enabled conservatives to oppose constitutional innovations by the Warren and Burger Courts” in a “hostile environment.” But “[t]he hostile environment that made originalism a useful rhetorical and political expedient is now gone.”
There are two problems with this, without even getting into the question of how much hostility toward conservatives endures today. First, no argument about constitutional interpretation should rest on its utility and political expediency. That is the stuff of results-oriented judging. Originalism is not about expediency, and expediency is no excuse for conjuring up alternative theories of interpretation.
Second, while Vermeule is correct that much of what crystallized under the label “originalism” in recent times was a reaction to the excesses of the Warren and Burger Courts, he is wrong to dismiss this approach to the Constitution as mere reaction to a particular era. Originalism did not begin with Robert Bork and Antonin Scalia. In his Commentaries on the Constitution of the United States, Justice Joseph Story asserted, “The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms and the intention of the parties.” Further, “the intention of a law is to be gathered from the words, the context, the subject-matter, the effects and consequence, or the reason and spirit of the law.” A century later, Solicitor General (and future justice) Robert Jackson looked at “the terms of the Constitution” and “the historic experience of the Framers” in criticizing a line of cases that used the Due Process Clause to strike down state laws regulating business.
Originalism respects the straightforward command that federal courts adhere to the text of the very instrument that created them. That is common sense. Yet Vermeule admits the theory he advances under the “common-good” label “is not tethered to particular written instruments of civil law or the will of the legislators who created them.” It draws from tradition that includes “the law of nations” and “principles of objective natural morality.” This calls to mind some of the Supreme Court’s activist decisions selectively employing international law (e.g., Roper v. Simmons (2005)) and, as Vermeule admits, the argument of liberals like Ronald Dworkin that judges should read a set of moral commitments into the Constitution. But in this case, the use of these extraconstitutional sources would be conservative rather than liberal.
Vermeule also seems to come full circle with liberals who believe that the federal government should be permitted to do anything it wants in the amorphously defined public interest, except here with less protection of individual liberty. (Though unions, local governments, and “other solidaristic associations” would enjoy some level of protection, perhaps supplanting the individual.)
This paradigm disregards both federalism and the separation of powers, which is easy to do when the text of law and the will of elected legislators are not controlling. It would permit the spectacle of judges and an enlarged bureaucracy performing roles the Constitution assigns to other branches of the federal government or leaves to the states. The reality is that the structural Constitution, having proven to be essential to the preservation of liberty, prevents the oppression that comes with unchecked power, however much its agents preach the “common good” as their intention.
Instead of expecting courts to be instruments of policy preferences, those preferences should be pursued through the elected branches of government, with the courts applying the Constitution as a necessary backstop. That is how judges truly serve the common good.
Thirty years ago, Judge Bork wrote The Tempting of America, which championed originalism and illustrated the unfortunate politicization of the courts. That politicization occurred most brazenly in the service of left-liberalism. All these years later, the temptation remains. The pitfalls of straying from originalism are real, and they are not limited to liberals.
2008—Some nine months after his nomination to the Fourth Circuit, federal district judge Robert J. Conrad has still not been afforded a confirmation hearing, even though he received the ABA judicial-evaluations committee’s unanimous highest rating of “well qualified” and enjoys the strong support of both home-state senators. Trying to defend his obstruction of Conrad, Senate Judiciary Committee chairman Patrick Leahy accuses Conrad of having made “anti-Catholic comments about a nun.” In fact, Conrad, himself a Catholic, had in 1999 criticized a nun for “the near total contempt [she] displayed for the Roman Catholic Church.” Conrad’s nomination will expire months later without his ever receiving a hearing.
2009—The lawless judicial attack on traditional marriage and on representative government continues, as the Iowa supreme court rules unanimously (in Varnum v. Brien) that a “state statute limiting civil marriage to a union between a man and a woman violates the equal protection clause of the Iowa Constitution.”
Central to the court’s ruling is its assertion that “equal protection can only be defined by the standards of each generation.” An intelligent citizen not attuned to the deceptive rhetoric of living-constitutionalist judges would sensibly imagine that that proposition would mean that the court would defer to the standard of the current generation of Iowans reflected in the statute that Iowa adopted in 1998. But what the court really means is that each generation of judges is free to expand the meaning of equal protection according to its own subjective standards—and to shrink the realm of representative government. Or, as the court puts it in activist gobbledygook:
“The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change.”
There are few cases the U.S. Supreme Court will decide this term that are of more legal and cultural importance than R.G. & G.R. Harris Funeral Homes v. EEOC, which I argued before the court in my role with Alliance Defending Freedom on behalf of the funeral home. Legally, the case will decide whether government bureaucrats and courts have the power to rewrite the meaning of “discrimination” “because of” “sex” in Title VII (the federal law prohibiting employment discrimination) to include “gender identity.” Culturally, a redefinition of the word “sex” in our nation’s law has massive, long-term ramifications for women and girls.
Unsurprisingly, progressive columnists and legal analysts have continued to push for the redefinition of “sex.” The object of their pressure? Justice Neil Gorsuch, one of the high court’s newest members.
According to such commentators, the statutory text requires a ruling for a former employee who desires to present and dress as a member of the opposite sex when meeting with grieving funeral-home clients. If the Supreme Court rules for the funeral home, the commentators say, it’s because Justice Gorsuch and the court’s other textualists are acting politically. This sets the stage for demanding that the next Democratic president and Congress be allowed to “pack” the court with new seats, all filled with liberal justices. But the commentators’ legal theory is just as silly and politically motivated as the court-packing plan.
The so-called “but-for” argument goes something like this: The funeral home has a sex-specific dress code. A biological female who wants to present and dress as a woman at work can do so. “But for” the former employee being born a male, that former employee would also be able to present and dress as a woman at work. Accordingly, the funeral home has discriminated because of the former employee’s sex.
This argument is demonstrably wrong.
Consider the Supreme Court’s opinion just last week in Comcast Corporation v. National Association of African American-Owned Media. The case involved a § 1981 claim that Comcast discriminated against an African-American-owned television network operator. One of the questions was whether, at an early case stage, the plaintiff had to show merely that race played “some role” in the decision-making process or instead was a “but-for cause” of the injury.
The Supreme Court upheld the “but-for cause” standard for every litigation stage. And in addressing what the standard meant, the opinion explained it like this: “If the defendant would have responded the same way to the plaintiff even if he had been white, an ordinary speaker of English would say that the plaintiff received the ‘same’ legally protected right as a white person. Conversely, if the defendant would have responded differently but for the plaintiff’s race, it follows that the plaintiff has not received the same right as a white person.”
Now apply that principle to Harris Funeral Homes. The former employee refused to comply with the funeral home’s sex-specific dress code. If a biological female refused to comply with the sex-specific dress code, the funeral home would have responded the exact same way as it did to the former employee. So an ordinary speaker of English would say that the former employee received the “same” legally protected right as a member of the opposite sex.
The problem with the commentators’ hypothetical is that it changes two features of the employees being compared: their sex and their gender identity. That makes it impossible to prove whether the former employee was treated differently because of sex (which is prohibited) or gender identity (which is not). And that failure of proof is dispositive, because the Supreme Court has recognized for decades in cases like Frontiero, Price Waterhouse, Oncale, and Manhart that Title VII’s prohibition on sex discrimination requires proof that one sex was treated worse than the other sex because of sex.
What’s more, a textualist would read all of Title VII’s words in context, not just the word “sex.” One of those important terms is “discriminate,” which can mean discerning or noticing differences, such as discriminating the individual voices in a choir.
But “discriminate” in Title VII is followed by the word “against,” which makes clear that the statute is referring to distinctions or differences in treatment that injure protected individuals. Indeed, the Supreme Court itself held this in its Burlington Northern decision nearly a decade and a half ago.
And while Title VII quite clearly protects women and men from being discriminated against because they are women and men, the text does not protect individuals based on their gender identity. Quite the opposite, Congress has considered and rejected a dozen proposals to change Title VII that would add gender identity as a protected class. That is why there are now hundreds of state and local laws that prohibit differential treatment based on “gender identity” in addition to differential treatment based on “sex.”
The cultural consequences of accepting the commentators’ arguments are immense. As discussed at the Harris oral argument, it could mean that women’s shelters would have to allow men who identify as women to sleep in the same room as women who have been raped, trafficked, or abused. Sound implausible? A federal court in Alaska had to stop the city of Anchorage from forcing a shelter to do exactly that.
It could also mean that males identifying as females would have to be permitted to compete in women’s athletics. Think that’s ridiculous? In Connecticut, two boys have won 15 girls’ state track-and-field titles in the past three years alone, leading to a lawsuit. And when the girls’ parents questioned the fairness, officials told them that girls have the right to participate but not the right to win. This is serious enough that Justice Ruth Bader Ginsburg brought it up when questioning the ACLU’s attorney during the Harris oral argument.
In fact, a ruling for the former employee in Harris would require employers (and eventually every government institution) to discard every policy that requires an employer to notice a person’s sex: sex-specific dress codes, showers, restrooms, locker rooms, overnight facilities, athletic teams . . . you name it. Yet mere noticing of sex does not motivate an employer to prefer one sex over the other, as anti-discrimination laws like Title VII require. Not a single person in America reading the law’s prohibition against “discrimination” “because of” “sex” at the time Title VII was enacted would have understood the statute’s words to carry such an extreme meaning, which is why no one advanced this new theory for decades.
Harris Funeral Homes is a straightforward, easy case for a textualist. The funeral home’s position should win the vote of any justice applying the plain text. Title VII was enacted to ensure that men and women were treated equally. It does not require employers to treat men as women. No justice should feel compelled by public pressure to say otherwise.
2007—In Massachusetts v. EPA, the Supreme Court rules by a 5-4 vote, that the state of Massachusetts has standing to challenge the Environmental Protection Agency’s denial of a petition to begin regulating “greenhouse gases.” Justice John Paul Stevens’s majority opinion further rules that the EPA unlawfully declined to exercise regulatory authority over such gases.
Chief Justice Roberts and Justice Scalia each write for the four dissenters. Roberts observes that the majority has no support for its claim that Massachusetts is “entitled to special solicitude” in the analysis of standing. Its status as a state, he explains, “cannot compensate for [its] failure to demonstrate injury in fact, causation, and redressability.” The majority having decided otherwise, Scalia disagrees with its assessment of the EPA’s action:
“The Court’s alarm over global warming may or may not be justified, but it ought not distort the outcome of this litigation. This is a straightforward administrative-law case, in which Congress has passed a malleable statute giving broad discretion, not to us but to an executive agency. No matter how important the underlying policy issues at stake, this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency.”
2015—“Judicial-identity disorder” is a condition that afflicts judges who experience significant discontent with the role they were assigned when they took office. JID typically manifests itself in judicial decisions that are inconsistent with the judicial role and in behavior that reflects a severe and pervasive discomfort with neutrally applying the law. Unfortunately, no effective treatment for the condition is currently available.
Federal district judge Jon S. Tigar, appointed by President Obama in 2013 to the Northern District of California, quickly joins the ranks of judges manifesting symptoms of JID, as he issues an order ruling that a California prisoner, Jeffrey Norsworthy, is likely to succeed on the merits of his claim that prison officials have violated his Eighth Amendment rights by not providing him sex-reassignment surgery. Tigar orders the state to “take all of the actions reasonably necessary to provide Norsworthy sex reassignment surgery as promptly as possible.”
2008—Wisconsin voters, presented the opportunity to alter what one commentator aptly called the “4-3 liberal majority [that had become] the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices,” defeat associate justice Louis B. Butler Jr.’s bid to remain on the court and elect Michael Gableman in his place.
2013—The Supreme Court unanimously affirms a ruling by Ninth Circuit judge Stephen Reinhardt.
April Fool’s! Just kidding.
Instead, in a per curiam opinion (in Marshall v. Rodgers), the Supreme Court overturns a Ninth Circuit panel decision joined by Reinhardt and his lefty colleague William A. Fletcher (and authored by a visiting district judge). The Ninth Circuit panel had granted the claim by a habeas petitioner that the state of California had violated his Sixth Amendment right to effective assistance of counsel. But, explains the Supreme Court, the panel’s conclusion that the habeas claim was supported by “clearly established Federal law” rested on its “mistaken belief that circuit precedent may be used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific rule that this Court has not announced.”
Judge Cory Wilson is President Trump’s nominee to the U.S. Court of Appeals for the Fifth Circuit. Wilson is currently a judge on the Mississippi Court of Appeals. Before today’s announcement, Wilson was a pending nominee to the U.S. District Court for the Southern District of Mississippi.
49 years old, Wilson is a native of Pascagoula, Mississippi. He graduated summa cum laude from the University of Mississippi in 1992. At Ole Miss, Wilson received the Taylor Medal in Economics, awarded to the student achieving the highest GPA. Following his graduation from Ole Miss, Wilson attended Yale Law School, where he was an editor for the Yale Law Journal, an Olin Fellow in Economics, and a member of the Yale Law School chapter of the Federalist Society.
Immediately after his law school graduation in 1995, Wilson clerked for the Honorable Emmett R. Cox of the U.S. Court of Appeals for the Eleventh Circuit. He then went into private practice in Jackson, Mississippi—first with the firm of Watkins, Ludlam, Winter & Stennis and then with Bradley, Arant, Rose & White. Wilson was promoted to partner at Bradley Arant in 2003. From 2005-2006, Wilson served as a White House Fellow with the Department of Defense in Washington, D.C. He returned home to Jackson in 2006.
In 2008, Wilson joined the Mississippi Secretary of State’s Office as Deputy Secretary of State and Chief of Staff. Following three years of service, Wilson formed a solo law practice in Madison, Mississippi. In 2013, he joined the faculty of the University of Mississippi School of Law as an adjunct professor, teaching pretrial practice.
In 2014, Wilson returned to state service for one year and worked as a senior advisor and counsel in the Office of the Mississippi State Treasurer. He subsequently joined the Jackson office of the Mississippi law firm of Heidelberg Steinberger Colmer & Borrow.
In 2016, Wilson was elected to the Mississippi House of Representatives, representing Mississippi’s 73rd district. During his tenure at the Statehouse, Wilson was of counsel at the law firm of Jernigan Copeland until his appointment to the Mississippi Court of Appeals in December 2018.
On August 28, 2019, President Trump nominated Wilson to a seat on the U.S. District Court for the Southern District of Mississippi. At his Senate Judiciary Committee hearing earlier this year, Senator Richard Blumenthal (D-CT) criticized Wilson for his membership in the Federalist Society.
In response to Blumenthal’s attack on Wilson, Senator Mike Lee said of Wilson’s Federalist Society membership:
This is, in no way, shape or form, something that should be the subject of legitimate inquiry, especially when one understands that the Federalist Society is there to provide an open forum for debate, discussions and conversations about the Constitution, the law, federalism, the separation of power—things that I believe all of us as lawyers have taken an oath to uphold and protect and defend.
In addition to the Federalist Society, Wilson has held leadership positions in the Mississippi chapter of the Federal Bar Association, including serving as president from 2002-2003. In 2003 and 2004, Wilson was awarded the Mississippi FBA Chapter’s Presidential Achievement Award.
Judge Wilson is an active member of his local church. He is married and has one son.
1958—In Trop v. Dulles, the Supreme Court, by a 5 to 4 vote, invalidates the sentence of forfeiture of citizenship imposed on a soldier who deserted during wartime. Illustrating two of the gimmicks of the liberal judicial activist—abstraction far removed from the text of the Constitution and invocation of the Living Constitution—Chief Justice Warren’s plurality opinion declares that the “basic concept underlying the Eighth Amendment[’s bar on cruel and unusual punishments] is nothing less than the dignity of man” and that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” (Somehow those “evolving standards” are seldom broadly reflected in actual legislation.)
Justice Frankfurter’s dissent for four justices points out that wartime desertion is a capital offense “and has been so from the first year of independence.” Therefore, “to insist that denationalization is ‘cruel and unusual’ punishment is to stretch that concept beyond the breaking point.” Asks Frankfurter rhetorically: “Is constitutional dialectic so empty of reason that it can be seriously urged that loss of citizenship is a fate worse than death?” Even far more in recent decades than in 1958, the answer to Frankfurter’s question is plainly yes.
1989—According to the logbook maintained by the staff of the Morristown public library, squatter Richard R. Kreimer “spent 90 minutes—twice—staring at reference librarians.” In response to this and other highly disruptive behavior, the library crafts written rules that prohibit, among other things, “unnecessary staring”. But, in a wild ruling, federal district judge (and, later, Clinton appointee to the Third Circuit) H. Lee Sarokin declares the rules facially unconstitutional. (See This Day entry for Feb. 14, 1992, for more on this case and the Third Circuit’s reversal of Judge Sarokin’s ruling.)
2001—After nearly six years in which his preliminary injunction has operated to prevent Indiana from implementing an informed-consent statute for abortion that is materially identical to the provisions that the Supreme Court held to be constitutionally permissible in 1992 in Planned Parenthood v. Casey, federal district judge David F. Hamilton enters a permanent injunction against the statute. In doing so, Hamilton rests heavily on a statistical study, conducted by a sociologist at the Alan Guttmacher Institute, that related entirely to the effects of a waiting-period provision in Mississippi. Never mind that the Seventh Circuit had already determined, in a 1999 case involving Wisconsin’s informed-consent law, that the Mississippi study should not be relied on. A Seventh Circuit panel (with abortion radical Diane Wood in dissent) later reverses Hamilton’s injunction.
In 2009, Hamilton, a former ACLU activist, will become President Obama’s first nominee to a federal appellate seat.
2000—In dissent (in City of Erie v. Pap’s A.M.), Justice Stevens, joined by Justice Ginsburg, opines that an ordinance generally barring public nudity violates First Amendment speech protections. Amidst discussion of pasties and G-strings, Stevens complains that the ordinance was adopted in response to a specific concern about nude dancing at strip clubs rather than about public nudity in general. So what? As Justice Scalia responds: “As far as appears (and as seems overwhelmingly likely), the preamble, the councilmembers’ comments, and the chosen definition of the prohibited conduct simply reflect the fact that Erie had recently been having a public nudity problem not with streakers, sunbathers or hot-dog vendors, but with lap dancers.”
2018—So much for Congress’s restriction, enacted in 1996, providing that a federal prisoner may file a second habeas petition under 28 U.S.C. 2255 only upon a showing of new evidence of innocence or a new rule of constitutional law from the Supreme Court. In United States v. Wheeler, a Fourth Circuit panel holds that a new rule of law, whether constitutional or statutory, from the court of appeals can enable a federal prisoner to bypass Congress’s restriction.
In Comcast Corp. v. National Association of African American-Owned Media, the Supreme Court ruled unanimously on Monday that a plaintiff suing over alleged unlawful discrimination in the making of contracts under 42 U.S.C. § 1981 must plead and prove that its injury would not have occurred “but for” the defendant’s unlawful conduct.
In attacking the Court’s ruling, some critics on the Left have resorted to outlandish misrepresentations of what the “but for” causation standard means. For example, in the Nation, Elie Mystal asserts (emphasis added):
Comcast argued that Allen had to allege that race was the “but-for” cause of Comcast’s decision.
Essentially, Comcast argued that Allen needed to show that deep, malicious racism was the only thing Comcast executives were thinking about when they decided to shut out Allen’s network.
Comcast’s position holds African American litigants, and anyone else who falls under the protections of the 1866 Civil Rights Act, to a nearly impossible standard. Racist corporate executives don’t make a habit of walking around saying, “I would give that guy a contract if he weren’t black.” Even when they do think and act like that, they rarely commit such thoughts to an e-mail. Comcast wants black people to be able to prove a level of racism most white people won’t admit to. Under Comcast’s logic, all of their executives could have met with Allen while wearing MAGA hats and asked him which “shithole country” his ancestors came from—and then simply told Allen they weren’t going to carry his network because of “economic” reasons.
The Supreme Court agreed with Comcast’s position.
Nearly everything between the first and last sentences of that passage is nonsense. As Justice Gorsuch explains in his unanimous opinion, all that the but-for standard requires for a section 1981 claim is that the plaintiff show that the defendant “would have responded differently [to the plaintiff] but for the plaintiff’s race.” Far from being “a nearly impossible standard,” that is the ordinary standard of causation. Where there is plausible—even if entirely circumstantial—evidence of a racial motive on the part of the defendant, it would be the extremely rare case that would not survive a defendant’s summary-judgment motion and go to a jury for decision. And that jury would have broad discretion to make all sorts of reasonable inferences about discrimination, and it would have to find only by a preponderance of the evidence—the lowest evidentiary standard—that discrimination was a but-for cause.
For similar reasons, Ian Millhiser is flatly wrong when he contends (emphasis added) that
discrimination suits often place the plaintiff in an impossible position. The plaintiff may have a hunch that they are a victim of unlawful discrimination, but unless they can read minds — or, more often, unless the employer is foolish enough to declare in writing that they acted with racist motives — the plaintiff has no way to prove the defendant’s actions were driven by improper means.
There is no mystery why the liberal justices joined Justice Gorsuch’s opinion: The ruling was unanimous because the issue was an easy one.
1931—Stephen Reinhardt is born in New York City. Appointed to the Ninth Circuit by Jimmy Carter in 1980 and serving in active status on that court until his death in March 2018, Judge Reinhardt will earn notoriety as the “liberal badboy of the federal judiciary.” In his overtly political view of judging, “The judgments about the Constitution are value judgments. Judges exercise their own independent value judgments. You reach the answer that essentially your values tell you to reach.” Undeterred by, and indeed defiantly proud of, being perhaps the most overturned judge in history (frequently by a unanimous Supreme Court), Reinhardt declares, “They can’t catch them all.”
2014—Canon 3A(6) of the Code of Conduct for United States Judges states: “A judge should not make public comment on the merits of a matter pending or impending in any court.” But that clear bar somehow doesn’t stop Second Circuit judge Guido Calabresi from collaborating in the publication of an extended interview about the pending Supreme Court case of Town of Greece v. Galloway. That case, in which Calabresi wrote the opinion under review, presents the question whether a town’s practice of allowing volunteer private citizens to open board meetings with a prayer violates the Establishment Clause.
Among other things, Calabresi seeks to defend his ruling, says that it “would be too bad” if the Court reverses it, identifies what he thinks is the “closest question in our case,” and rejects the notion of a “non-sectarian prayer.”
Barely a month later, the Supreme Court, by a vote of 5 to 4, will reverse Calabresi’s ruling.