Bostock v. Clayton: The Silence of the Libs.

In Bostock v. Clayton, the Supreme court decided that discrimination against gay employees violates Title VII of the Civil Rights Act of 1964. (The case also applies to trans employees, but the logic is parallel, so this discussion will refer only to homosexuals.) I don’t know whether the case was rightly decided, but I do not believe the Court’s opinion by Justice Gorsuch makes the case for the decision reached.  And, although Bostock may prove to be as important as Griswold v.Connecticut – even Justice Gorsuch calls it an “elephant” – not one other justice saw fit to offer a concurring opinion. Justice Kavanaugh felt moved to write his own dissent, but the Court’s liberals declined to offer a better case for the result than Justice Gorsuch’s wordplay.  Maybe they were content to take the win, and maybe they didn’t want to rock the boat. But they may come to regret their silence.

Writing for the Court, Justice Gorsuch applies the “but for” test used in other cases where membership in a protected class was not the sole or primary reason for an action challenged under Title VII. Applying that test, Justice Gorsuch reasons that if an employer does not fire women who prefer men, but does fire a man who prefers men, the employer discriminates against that man “because of [his] sex.” As Justice Gorsuch wrote (p. 9) “if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.” Sounds fair, but something seems off about it, so let’s test that template.

The Age Discrimination in Employment Act of 1967 tracks the language of Title VII, prohibiting discrimination against an individual “because of such individual’s age.” In most states, people below the age of sexual consent are permitted to work. Presumably, an employer would not fire a sixteen-year-old burger flipper for asking out a sixteen-year-old cashier. But if a fifty-year-old worker did the same thing, the employer might decide not to have a potential pedophile on the payroll. Thus, changing the employee’s age would have yielded a different choice by the employer. By Justice Gorsuch’s reasoning, the older employee would have been fired “because of that individual’s age” and could sue under the ADEA. I find that result troubling, but it fits perfectly into Justice Gorsuch’s “but for” template.

The problem, I believe, lies in the choice of “traits” considered. Justice Gorsuch wrote (pp. 9-10):

Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.

Compare that argument to this one from a hypothetical dissent:

Consider, for example, an employer with two employees, both of whom are attracted to members of their own sex. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires them both, for no reason other than the fact that each is attracted to his or her own sex, the employer does not discriminate against either for traits or actions it tolerates in their colleagues.

As lawyers like to say, Justice Gorsuch “puts the rabbit in the hat” when he chooses preference for a particular sex, as opposed to preference for one’s own sex, as the “trait” shared by the two employees. There is no a priori reason to make that choice, and none is offered. On the contrary, the ADEA example suggests that the choice is ill-advised. The potential pedophile in that example is fired not for preferring nubile teens, a defining trait of the red-blooded cis-het schoolboy, but for age-inappropriate creepiness, something someone of any age can evince (and be fired for).  If every employee of either sex who prefers his or her own sex is treated equally, changing the sex of the employee does not change the choice by the employer.

Justice Alito makes this argument in his dissent (p. 16)

If the employer’s objection to the male employee is characterized as attraction to men, it seems that he is just like the woman in all respects except sex and that the employer’s disparate treatment must be based on that one difference. On the other hand, if the employer’s objection is sexual orientation or homosexuality, the two employees differ in two respects, and it cannot be inferred that the disparate treatment was due even in part to sex.

I believe Justice Alito has the better argument here. (I don’t know why he doesn’t simply reject “prefers men” as a difference rather than dismiss it as not shown to be an operative difference.) In preferring Justice Alito’s analysis, I am not saying that the majority decision is wrong, just that it was poorly defended - and that the liberals really should have spoken up with a less easily refuted rationale.

Justice Kavanaugh’s dissent is also persuasive as a critique of Justice Gorsuch’s opinion. That, too, is not the same thing as being persuasive as to the result, but it does again make louder the silence of the libs.

The Misdirection of “Original Intent.”

I’m guessing you’ve heard the suit joke. Here’s a concise version grabbed from the web:

A man tries on a made-to-order suit and says to the tailor, “I need this sleeve taken in! It’s two inches too long!”

The tailor says, “No, just bend your elbow like this. See, it pulls up the sleeve.”

The man says, “Well, okay, but now look at the collar! When I bend my elbow, the collar goes halfway up the back of my head.”

The tailor says, “So? Raise your head up and back. Perfect.”

The man says, “But now the left shoulder is three inches lower than the right one!”

The tailor says, “No problem. Bend at the waist way over to the left and it evens out.”

The man leaves the store wearing the suit, his right elbow crooked and sticking out, his head up and back, all the while leaning down to the left. The only way he can walk is with a herky-jerky spastic gait.

Just then two passersby notice him.

Says the first, “Look at that poor crippled guy. My heart goes out to him.”

Says the second, “Yeah, but his tailor must be a genius! That suit fits him perfectly!”

The “suit” (no pun intended) in Bostock is “original intent,” a trivially reductive “doctrine,” if it can be called a doctrine at all. All judges are originalists. All agree that words in statutes mean what they “meant” at the time they were used. So, for example, when Queen Gertrude says the lady doth “protest” too much,” she means that she promises too much, because at the time, “protest” meant “promise” (as in “Protestant).” No judge is going to interpret “protest” in an Elizabethan statute to mean “remonstrate” just because that’s what it has come to mean centuries later.

But self-styled “originalists” beg a more subtle question. Very often, the issue in statutory interpretation is not, as Justice Gorsuch calls it (p.4), the “public meaning of its terms at the time of its enactment.”  That meaning is usually clear enough. The real question is whether those words are being used de re or de dicto. The nuances of that distinction are beyond the scope of this essay (and my ken), but the TL;DR is that the same expression can be used either to refer to a certain thing (de re) or to describe an unknown thing (de dicto). The classic example is “John believes that someone is a spy.” We cannot tell from the words themselves whether John believes he knows who the spy is. Is the speaker speaking de dicto (John does not believe he knows) or de re (John has a certain person in mind). 

Context can sometimes resolve the issue. When Glenn Miller’s crooner declares that he’s goin' to Michigan to see the sweetest gal In Kalamazoo, we know he is speaking de re, because he obviously has a certain young woman in mind. (She’s a real pipperoo!)  And when Petruchio says he has come to wive it wealthily in Padua, we know he is speaking de dicto, because we know he is unacquainted with the local social register. But in either of those examples, the actual sentences leave open the question of whether the speaker had a specific person in mind.

Some legal questions turn precisely on the choice between de dicto and de re. We can, for example, interpret the term “cruel and unusual” de re to identify punishments that were thought “cruel and unusual” in 1789 , or we can read it de dicto to describe punishments that are cruel and unusual by the lights of the future society administering them.  Nothing about one interpretation is more “originalist” than the other. Both interpretations would be supported by a 1789 dictionary.  But one interpretation treats the term as an identifier and the other treats it as a descriptor.

When self-styled “originalists” invoke “original meaning,” they are often really saying that they wish to treat statutory words as de re identifiers and not as de dicto descriptors.  Thus, Justice Gorsuch’s fellow “originalist” Justice Alito writes (p.4):

Determined searching has not found a single dictionary from that time that defined “sex” to mean sexual orientation, gender identity, or “transgender status.”

This factoid implies, I believe, that a more modern dictionary might define “sex” more broadly, but it wouldn’t matter to Justice Alito, because, to him, that change would be like the shift in the meaning of “protest.” The counterargument would be that we have since 1964 come to understand that at least some aspects of sexuality are innate and so should benefit from whatever legal provision has been made de dicto for “sex.”

I attribute the tendency toward de re interpretation to a kind of conservatism. As a matter of policy, a de re reading is less likely than a de dicto reading to intrude on legislative prerogatives.  That’s not a bad place to start analysis, but it is only a place to start. 

The Missing Concurrences

Regarding the meaning of “sex” in 1964, Justice Gorsuch was not so sure as Justice Alito about the state of play (p.5):

The only statutorily protected characteristic at issue in today’s cases is “sex”—and that is also the primary term in Title VII whose meaning the parties dispute. Appealing to roughly contemporaneous dictionaries, the employers say that, as used here, the term “sex” in 1964 referred to “status as either male or female [as] determined by reproductive biology.” The employees counter by submitting that, even in 1964, the term bore a broader scope, capturing more than anatomy and reaching at least some norms concerning gender identity and sexual orientation. But because nothing in our approach to these cases turns on the outcome of the parties’ debate, and because the employees concede the point for argument’s sake, we proceed on the assumption that “sex” signified what the employers suggest, referring only to biological distinctions between male and female.

Whoa! For the sake of what argument did the employees “concede” the point? Surely, then can concede that the point is irrelevant to Justice Gorsuch’s argument, as he sided with them. But it is hardly possible that the employees “say” that “sex” may mean more than plumbing but “concede” generally that it doesn’t. 

I mentioned Griswold because six opinions were filed in that case.  Each of the writing Justices wanted to make clear his or her view of why the case should have been decided as it was decided. A concurring opinion in Bostock might have provided a pro-employee template that pedophiles can’t use. I'm not especially worried about pedophiles, but if pedophiles can use a logical template, that template is almost certainly defective. And if the template is defective, the power of the case as precedent is weakened.  

Justice Alito solved the logical problem in a way that comes down against the employees. I would like to have seen a Justice argue that Justice Alito is wrong about what “sex” meant in 1964, and that, even if he is right, the word was used de dicto in the statute and so now should be read to comprehend at least some aspects of sexuality. I cannot say whether that case can be made, but I do wish the Court’s liberals had given it a shot.

Beware of Originalists Bearing Gifts

I must confess a somewhat dark view of Justice Gorsuch’s opinion – and of the liberals’ silence. The opinion looks to me like a Trojan horse. The reliance on the choice of trait for the “but for” argument is so bizarre as to call that test into question entirely. If a “but for” test as presented here would protect pedophiles, then that test must be tweaked to require some level of relevance. But liberals have been winning with the “but for” test for decades, and they may well be loath to suggest that it does not apply here for fear it might not apply somewhere else. Justice Alito’s argument against Gorsuch’s version actually protects the “but for” rationale by showing that it must be used correctly. Still, by misapplying it, I think Justice Gorsuch erodes its authority.

Judge Gorsuch may also be attacking the “disparate impact” analysis of Griggs v. Duke Power Company.  His opinion makes a very big deal of how the statute is about “individuals,” and not classes. Thus, the fact that the employer’s employment practices do not have a disparate impact on men or women is no excuse. If no disparate impact is no excuse, maybe conduct that has such an impact is not actionable. Gorsuch writes (p. 7):

In so-called “disparate treatment” cases like today’s, this Court has also held that the difference in treatment based on sex must be intentional.

But that’s not what those cases say. They say that disparate impact is the “functional equivalent” (Griggs) of intent. One wonders whether the camel’s nose of revisionism has stuck its nose under the disparate impact tent. I can see why the liberals would not want to pull on that thread either, but still, some turf needs to be defended if it is to be retained.

All in all, I was hoping for something better. 

COVID-19 and the Missing Bullet Holes

The story is told about how the US Army figured out the best way to armor its airplanes in WWII. Because armor slows planes down, it could not simply be layered on indiscriminately. So engineers had to figure out which parts of the plane needed it most. To find out, they inspected planes returning from battle. Because the planes were presumably being hit by anti-aircraft fire randomly, the parts of the planes that had no bullet holes must have been parts that could not afford to be hit, as planes being hit there were not returning. Those parts (the engines) got the armor.

I heard this story from my college room mate more than fifty years ago, but its logic, like the curious incident of the dog in the night time, stuck with me as a way to approach certain types of problem.  One such problem may be finding an "accidental" cure for COVID-19.

Recent reports suggest that chloroquine and hydroxychloroquine, anti-malarials long available generically in the US and used now for autoimmune diseases like rheumatoid arthritis and lupus, may prevent/cure COVID-19. The possibility of prevention (or cure so quickly as to amount to prevention) brings to mind the airplanes and their bullet holes. Everyone who seeks medical care for anything is asked for a list of medications they take. What if, despite the fact that something like .25% of the population takes CQ or HCQ  - I'm guessing; the number doesn't really matter so long as it's big enough - almost no one presenting with COVID-19 takes either of those drugs? Wouldn't that raise an inference that the drug is providing protection? And, of course, this bit of induction is not limited to these drugs. A bit of data-mining should reveal any significantly under-represented medication in the COVID-19 population.

Yes, clinical testing needs to be done, but, as Henry David Thoreau wrote, some circumstantial evidence is quite powerful, as when you find a trout in the milk. If people taking HCQ in France are getting better, and people already on CQ or HCQ here (and anywhere else) are not getting sick, We may have a way out of this mess before a real vaccine can be developed, tested, and distributed.

This thought must have crossed the minds of people in a position to look into it. So, if a popular medicine that incidentally prevents COVID-19 infection or symptoms is out there, it will be detected, and we will be back to our lives sooner than most people believe.

COVID-19 and the Birthday Party Model

I have long believed that the real reason kids have birthday parties is so that they can trade microbes. When else do we let strangers blow on our food? We let kids share microbes so that they will develop herd immunity. The contagion is contained because the kids' parents are largely immune to the bugs kids bring home. Not all of them, but enough of them for the birthday "system" to be a net plus.

COVID-19 differs from other diseases that are milder in childhood in one important way: adults are not immune to it. But that does not seem to me to rule out allowing young, healthy people, including otherwise healthy pre-senior adults (aka parents of school children) to contract and purge the disease as a way to create herd immunity. Instead of the total social distancing we are practicing, we should only be isolating high-risk populations. The rest of us should be getting on with our lives.

I also wonder how the economic effects of social distancing affect death from all causes. We don’t have universal healthcare, and, even if we adopted it tomorrow, one may expect that the economic dislocations of businesses shutting down will cause an increase in homelessness and death by other causes, including fear of emergency rooms.

My guess is that history will record that we over-reacted to this bug, not in the sense that we worried too much about it, but in that our response was insufficiently nuanced. The social distancing will last much longer than necessary because herd immunity will not be achieved until nearly everyone’s been vaccinated (as with smallpox in its day). We will look back and realize that we could have done more by doing less.

[Update: The herd immunity method was tried in the UK, but data suggested that the hospital system could not handle the surge of severe cases. A policy of case and family quarantine plus social distancing of high-risk populations might in fact reduce total cases, the so-called "area under the curve," but hospital beds create as constraint outside the simple epidemiological math.]

Obamacare is Still Constitutional

Having guessed right last time about SCOTUS's take on the Obamacare individual mandate, I am emboldened to guess again now that the Court has agreed to hear the latest challenge. Only this time, I'm afraid I may only be predicting what the dissenters will say.

In NFIB  v. Sibelius, Justice Roberts opined, correctly in my view, that the individual mandate in the ACA, which imposed a penalty tax on those who don't have health insurance, was a valid use of the tax power and was, therefore, Constitutional. At the same time, Roberts's opinion included dictum to the effect that the mandate was not authorized by the interstate commerce clause.  Seizing on the latter dictum, the idiot Republicans in charge of the Senate came up with a brilliant idea: reduce the penalty tax to zero. That way, there would be no tax on which the supporters of the mandate could hang their hats.

Congress eliminated the penalty in the tax cut act passed in 2017. They did not simply repeal the ACA, because, under the Senate's rules, they could reduce taxes by a simple majority, whereas actually repealing the law would require a vote that could be filibustered.  (Why Democrats want to get rid of the filibuster is beyond me.)

In their cynical attempt to kill the ACA by cutting its femoral artery, the GOP has, in my view, instead repealed the mandate and left the ACA legally, if not practically, unscathed. Without a penalty, there is no constitutionally cognizable mandate, and, without a mandate, there is no case. The resulting statute may not make sense, and it may not be actuarially sound, but it is what Congress has wrought, and it imposes on no one any burden the Constitution forbids. So, what's the problem?

The district court judge who ruled that the law was rendered unconstitutional by removal of the penalty tax wrote, in effect, that the mandate:

(i) survived removal of the penalty even though there is no legal consequence to ignoring it, 

(ii) is, by the logic of the opinion in NFIB, unconstitutional absent a tax to back it up, and 

(iii) is an integral part of the Act's structure, so that in being struck down, it takes the entire ACA with it. 

The district court's opinion has two key findings. First, the court determined that removing the penalty was not the same thing as removing the mandate, because the language imposing the mandate is still in the Internal Revenue Code (the provision was obviously not drafted by tax lawyers), and so  some people still feel obliged to obey it.  A handful of individual plaintiffs were actually dredged up to claim that they bought insurance out of respect for the mandate in the amended law. Second, and most crucially, the court found that the mandate was an integral part of the ACA structure and so its failure rendered the whole act void.

Neither of these findings can withstand much scrutiny. Congress does not create wrongs without remedies. If there is no sanction for non-compliance with the mandate, the mandate becomes "surplusage," words that Congress would have removed if it were doing a better job of drafting. There is no rational basis for leaving the mandate in the law without a penalty. There are some irrational reasons - e.g., so that it could be declared unconstitutional - but SCOTUS should (and I hope will) refuse to accept, without an actual Congressional finding, that Congress intended to pass an unconstitutional law.

Sound jurisprudence demands instead that the Court simply declare the mandate void, rather than "accuse" Congress of intentionally sabotaging its own act.  Declaring the mandate void would obviate people's duty to obey it, providing complete relief to those poor sots who feel obliged to buy insurance despite the absence of any penalty for not doing so. (Obeying a law that Congress has implicitly repealed does not cause the law not to have been repealed.)

Removal of the penalty also makes untenable the court's finding that the surviving "unconstitutional" mandate is an integral part of the ACA. No doubt, the mandate was an integral part of the ACA when violating it gave rise to a tax. But, as they say, that was then, and this is now. If Congress removes the penalty without reasserting the centrality of the mandate, it must also be presumed to have "reconsidered" the centrality of the mandate.

The district court found that Congress did retain its finding that the mandate was an integral part of the law. That conclusion was based on Congress's failure to remove the language in the ACA that says so. But, as the judge said, removing the language would have violated Senate rules. Therefore, no more can be inferred from failure to remove the language declaring the mandate integral than can be inferred from failure to remove the mandate itself. If Congress commits itself to drafting poorly, all the Courts can do is interpret what is left. In this connection, it's worth noting that the whole section of the ACA defending the mandate was predicated on Congress's power to regulate interstate Congress. Arguably, SCOTUS voided the entire section when it said in NFIB that the mandate was not supported by that clause.

The district court judge recognized that removing the penalty would likely undermine Congress's intent in passing the ACA. But if that's the case, the repeal of the penalty should be regarded as repeal of the ACA, something the Senate rules do not permit, and so, cannot have been the Congress's intent. Yes, there's a certain amount of "gotcha" reasoning here. I am urging the Court to take Congress at its (implied) word that it intends its acts to be law, so the least possible damage should be done to a defective law to enable as much of it as possible to remain law.

In this case, the least damage is done by treating removal of the penalty as nullification of the mandate, with whatever practical consequences that may have. If the district court is right that the amended law does not work without a penalty tax, Congress is free to restore the penalty or create some other subsidy to make the ACA's pre-existing conditions rules affordable. That Congress made the ACA stupid is not reason enough to infer either that it intended to repeal the law, in violation of its own rules, or render the law unconstitutional, in violation of the Constitution.

Perhaps the ACA's opponents should have argued that the surviving mandate opens non-compliers up to civil liability, some sort of class action of payers against non-payers for the damage done to the healthcare system by their failure to comply with Federal law. Such liability would give the mandate teeth, which would subject it to the Interstate Commerce test that it failed last time around. Thing is, the mandate is in the Internal Revenue Code. That's no place to find substantive private law. I will, therefore, defer consideration of civil liability until someone raises it.

In short, the cynical GOP assholes who control the US Senate have put SCOTUS in a bind. The Court must hold that the 2017 amendment to the ACA (i) implicitly repealed the ACA, contrary to Senate rules, (ii) intentionally rendered its own law unconstitutional, contrary to its raison d'etre under Article I of the Constitution, or (iii) implicitly removed the mandate, but did not repeal the entire ACA or make it unconstitutional. That choice seems easy to me. But maybe that's just me.