2016—Anticipating the imminent prospect of a liberal majority on the Supreme Court, Harvard law professor Mark Tushnet encourages the Left to abandon what he somehow imagines to have been an era of “defensive-crouch liberalism.” Among his modest and genial recommendations:
The Left “should be compiling lists of cases to be overruled at the first opportunity on the ground that they were wrong the day they were decided” and should “aggressively exploit the ambiguities and loopholes in unfavorable precedents that aren’t worth overruling.”
Rather than try to “accommodate the losers” in the culture wars, the Left should take a “hard line” against its fellow citizens. “Trying to be nice to the losers didn’t work well after the Civil War.” And “taking a hard line seemed to work reasonably well in Germany and Japan after 1945.”
“Finally (trigger/crudeness alert), f*** Anthony Kennedy.” (Except Tushnet doesn’t use asterisks.)
2021—One tenet of transgender ideology is that sex and gender identity are coherent distinct concepts, but this supposedly fundamental distinction suddenly disappears when it stands in the way of a litigation victory.
Addressing the meaning of a state statute enacted in 1975 that governs amending a birth certificate’s statement of a person’s “sex,” the Utah supreme court asserts (in In re Sex Change of Childers-Gray) that “biological sex, as it is understood in the birth-certificate context, may transform according to how a transgender individual chooses to respond to their [sic] gender dysphoria,” irrespective of “observable external attributes.”
In solo dissent, Justice Thomas Lee argues that the word “sex” in the 1975 statute is properly “understood as a reference to biological sex.” The statute, Lee explains, allows a change in the designation of sex on a birth certificate “upon discovery of a mistake in the biological sex designation made at the time of a child’s birth, or a showing that the biological features of an intersex person have developed differently than expected at birth” and perhaps even when “a person can demonstrate that the biological indicators of sex have been altered, as by sex-reassignment surgery”—but not “on the mere basis of a change in ‘gender identity.’”