Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—June 15

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1964—In Reynolds v. Sims, the Supreme Court rules, by an 8-1 vote, that the apportionment of seats in both houses of the Alabama legislature violates the Equal Protection Clause. In his majority opinion for six justices, Chief Justice Warren rambles his way to the conclusion that the Equal Protection Clause “requires that a State make an honest and good faith effort to construct districts … as nearly of equal population as is practicable” (whatever that means). In a brief separate concurrence in the judgment, Justice Clark criticizes Warren’s “use of these vague and meaningless phrases.”

In dissent, Justice Harlan complains that the majority ignores “both the language and history” of the Fourteenth Amendment, which show that “the Equal Protection Clause was never intended to inhibit the States in choosing any democratic method they pleased for the apportionment of their legislatures.” Harlan objects that the Court’s ruling will “have the effect of placing basic aspects of [nearly all] state political systems under the pervasive overlordship of the federal judiciary,” and that it “is difficult to imagine a more intolerable and inappropriate interference by the judiciary.” The ruling, he concludes, is part of a “current mistaken view … that every major social ill in this country can find its cure in some constitutional ‘principle,’ and that this Court should ‘take the lead’ in promoting reform when other branches of government fail to act.”

1982—In a 5-4 ruling in Plyler v. Doe, Justice Brennan’s majority opinion holds that the Equal Protection Clause requires Texas to provide a free public education to children who are illegal aliens since it provides such education to children who are citizens or legal aliens. In dissent, Chief Justice Burger states:

The Court makes no attempt to disguise that it is acting to make up for Congress’ lack of ‘effective leadership’ in dealing with the serious national problems caused by the influx of uncountable millions of illegal aliens across our borders. The failure of enforcement of the immigration laws over more than a decade and the inherent difficulty and expense of sealing our vast borders have combined to create a grave socioeconomic dilemma. It is a dilemma that has not yet even been fully assessed, let alone addressed. However, it is not the function of the Judiciary to provide ‘effective leadership’ simply because the political branches of government fail to do so.

2020—In what Justice Alito in dissent memorably likens to a “pirate ship [that] sails under a textualist flag” and what one commentator soundly condemns as a “desiccated literalism,” Justice Gorsuch’s majority opinion in Bostock v. Clayton County holds that discrimination on the basis of sexual orientation or transgender status constitutes discrimination “because of … sex” in violation of Title VII.

Gorsuch makes no effort to harmonize his radical new interpretation of Title VII with settled practices under that statute and other laws prohibiting sex discrimination, such as sex-specific restrooms, locker rooms, shower facilities and dress codes. He dutifully parrots the rhetoric of transgender ideology (e.g., “When she got the job, Ms. Stephens presented as a male”), even as his statutory analysis, for all its flaws, is predicated on the proposition that a man who identifies as a woman is in fact a man.

Amid the hosannas that Gorsuch’s purported exercise of textualism receives from a nationwide chorus of law professors who condemn textualism, two liberal law professors who welcome the result—Mitchell N. Berman and Guha Krishnamurthi—will explain that Gorsuch was “guilty of illicit deck-stacking” in determining that when a person is discriminated against for being homosexual or transgender, that person’s sex is a but-for cause of the discrimination.

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