URLs du Jour

2020-06-16

  • National Review's Jay Nordlinger has always struck me as a decent guy, I really should link to him more often. I'll start with his recent "Impromptus" (NRPLUS): J.K. Rowling, Real Writing, and More

    J.K. Rowling, the bestselling author in the history of the world, has expressed politically incorrect opinions about sex and transgenderism. As a result, much of the world — including former admirers and associates — has dumped on her. To read about this matter, go here. I have linked to a piece by my National Review colleague Madeleine Kearns.

    Another piece, published in The Daily Beast, begins this way: “Could someone please, for the love of God, teach J.K. Rowling how to read the room?”

    There are writers who read the room. They are practically human thermometers. And they give the room what it wants. But if you write for the room — with the room in mind; with audience reaction in mind — you can hardly be a real writer.

    I'd probably disagree with Ms. Rowling on a lot of stuff. But I admire her courage. (Of course, it's easier to have courage if you have Harry Potter money.)


  • To its (slight) credit, the NYT is permitting its op-ed writers to write on its craven capitulation to wokeness in unprinting the Tom Cotton op-ed. Taking his swings at the punching bag recently is Bret Stephens:

    Last week’s decision by this newspaper to disavow an Op-Ed by Senator Tom Cotton is a gift to the enemies of a free press — free in the sense of one that doesn’t quiver and cave in the face of an outrage mob. It is a violation of the principles that are supposed to sustain the profession, particularly our obligation to give readers a picture of the world as it really is.

    And, as the paper dismisses distinguished journalists along with controversial opinions, it’s an invitation to intellectual cowardice.

    […]

    Many critics of the piece’s publication think otherwise. The paper’s editors’ note said the senator’s Op-Ed didn’t meet The Times’s editorial standards. To which one might ask: Would the paper have stood by the article if Cotton had made a better case for sending in troops, with stronger legal arguments and a nicer tone? Or were the piece’s supposed flaws a pretext for achieving the politically desired result by a paper that lost its nerve in the face of a staff revolt?

    I'd bet on "pretext", there, Bret.


  • So the Supreme Court decided… something yesterday. Philip Greenspun summarizes Supreme Court spreads a big rainbow flag over the word “sex”. A contrarian opinion:

    Personally, I think that any law like this actually reduces employment opportunities for the category of people whom such a law purports to help. The law highlights to employers the inferior nature of workers in this category and that, if the employer is unwise enough to hire someone from this category, a lawsuit is an ever-present possibility. Absent a substantial discount, therefore, a rational employer, even one who is completely without prejudice, should thus do everything possible to avoid hiring someone who might fit into the protected category.

    Note that now you don't get to call this an "unforeseen outcome", because it was totally foreseen.


  • But we're cool with extending equal time on this issue. Here's Walter Olson at Cato With Nod To Scalia, Surprise Plain Meaning Carries Day for LGBT Plaintiffs.

    Today the Supreme Court held that the 1964 Civil Rights Act, by barring discrimination on the basis of sex, also forbids discrimination against gay and transgender employees. “When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest,” Justice Neil Gorsuch wrote for a 6–3 majority that included Chief Justice John Roberts as well as the four liberals. “Only the written word is the law, and all persons are entitled to its benefit.”

    So that sounds good. But it's Cato, so:

    As a policy matter, extending anti‐discrimination law further into private employment decisions invades further the realm of private choice and individual liberty. As Alito notes in his dissent, it is especially hazardous to do so without the sort of conscious legislative back‐and‐forth that might result in the negotiation of thresholds and exemptions so as to handle controversial or burdensome cases. In the longer run, when Congress revisits this area in legislation, it will have a chance to rethink these points.

    Yeah, that will be a fun thing to watch.


  • For another dissent, let's pop over to National Review's Dan MacLaughlin: SCOTUS Decides Who Is a Woman. Interesting point here:

    Justice Gorsuch’s reasoning goes back, over and over, to the same logical syllogism: If a man and a woman do the same thing and only one of them would get fired for it, that’s discrimination on the basis of sex. So, for example, if a woman and a man both bring a male spouse to the office Christmas party, and only the man gets fired, that’s sex discrimination.

    But Gorsuch completely ignores the central issue in the transgender-discrimination case, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, that was actually before the Court — and in a way that makes nonsense of his effort to use that syllogism to resolve the statutory question. In Harris, a funeral home had separate dress codes for men and women; a biological male (Stephens) began “living as a woman” and was fired for dressing as a woman. Under Gorsuch’s reasoning, this would qualify as sex discrimination because a woman would not be fired for dressing as a woman. But that assumes that the Court has decided whether Stephens is a woman, which of course is the entire question in debate in arguments about the legal and social status of transgenderism. In fact, Stephens contends that Stephens is not a man. The Harris Funeral Home enforced its dress code against Stephens not to discriminate against women dressing as women, but because it believed that Stephens was a man. The Court’s decision assumes that this is a decision that can be punished — an assumption that would have made no sense at the time the statutory term “sex” was written, in 1964.

    Have you ever been so in love with a cute logical syllogism that you fail to recognize that it misses an important issue? I know I have.


  • But Dan's not done. In a different article, he observes Trolling Is Terrible Way to Write Laws. Specifically, the word "sex" was added into the 1964 law by a Dixiecrat opponent of the bill, Howard Smith of Virginia. And certainly few legislators back in the day thought it meant that, fifty-six years later, the language would be wangled to extend protected status to the gay and transgendered.

    But yesterday's decision says: never mind that. We have to go by the law as written! No matter what they "really meant".

    Fine, but…

    Relatedly, the Court reiterated once again by its silence today that it does not regard its 2015 decision in King v. Burwell as law. King refused to read a provision of the Affordable Care Act to mean what it obviously said: that Obamacare subsidies went to exchanges established by states. In fact, it upheld an IRS regulation that explicitly applied such subsidies to exchanges “regardless of” whether they’d been established by states. The language in question, as in Bostock, undoubtedly caused a court fight because Congress had failed to do its job properly. The whole point of Chief Justice Roberts’s opinion in King was that the literal language of the statute had to give way to an understanding of the statutory purposes. As I noted in 2018, the Court, when presented with almost exactly the same issue in a less-controversial area of the law, unanimously refused to even so much as cite King as a precedent (even when lower courts in the case had followed it), and reached a directly opposite conclusion. The same happened today: Roberts and the Court’s four liberals (all of whom were in the King majority) signed onto an opinion pronouncing:

    Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

    King was never mentioned, reflecting the tacit agreement among the justices who joined it that it shall not be spoken of again. In fact, Gorsuch’s opinion specifically argues — again, in sharp contrast to King — that the Court should confine itself to examining the statutory language rather than considering the results of reading the language that way:

    Rather than suggesting that the statutory language bears some other meaning, the employers and dissents merely suggest that, because few in 1964 expected today’s result, we should not dare to admit that it follows ineluctably from the statutory text. When a new application emerges that is both unexpected and important, they would seemingly have us merely point out the question, refer the subject back to Congress, and decline to enforce the plain terms of the law in the meantime. That is exactly the sort of reasoning this Court has long rejected.

    In other words, none of the justices who signed onto the King decision actually believed in it.

    It's apparently too much to ask for the Supremes to reluctantly be consistent in these matters.


Last Modified 2020-06-17 4:20 AM EST