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No, Really: Justice Roberts cares about law

UPDATE: With a note on the Roberts concurrence at the end

Justice Roberts sided with the Court's liberals today in a (somewhat surprising, and really important) 5-4 decision by Justice Breyer striking down a Texas abortion law nearly identical to one the Court struck down in 2016.  Justice Roberts is not a fan of abortion.  But he is a fan of the law!  Today, he basically joined in a smackdown of the ultra-conservative 5^th Circuit, which forgot that it was an appellate court, and not a trial court.  Justice Breyer writes:

“The Court of Appeals agreed with the District Court’s interpretation of the standards we have said apply to regulations  on  abortion.    It  thought,  however,  that  the  District  Court  was  mistaken  on  the  facts.    We  disagree.   We  have  examined the extensive record carefully and conclude that it supports the District Court’s findings of fact.  Those findings mirror those made in Whole Woman’s Health [the 2016 case] in every relevant  respect  and  require  the  same  result.  We  consequently hold that the Louisiana statute is unconstitutional.” (op. slip, 3)

Yes, but before we get there, let’s remember that the job of the Court of Appeals is not actually to disagree about facts when it doesn’t like a precedent.  Breyer begins with a review session on what Court is supposed to do what:

Title VII Protects LGBTQ Individuals!

UPDATE: First, I'm being loose with terminology here - "originalism" specifically refers to a theory of Constitutional interpretation; what Gorsuch et al are advocating is "textualism" (for statutory construction).  The distinction between public meaning and expected application is important in the originalism debate - but I think it's clearly at work in the debate here.  Second, Andrew Koppelman's commentary here is worth reading on the different ways of understanding the plain meaning of a text.

Up until today, if your boss wanted to fire you for begin gay or trans, you had no recourse in federal law – so unless your state happened to protect you, you had no recourse at all.  Today, the Supreme Court issued a landmark ruling in Bostock v. Clayton County that not only hands the LBGTQ community a huge, huge set of legal protections, it does so in a straightforward way.  And the opinion was authored by Justice Gorsuch and joined by Roberts.

Gorsuch delivers a seminar on originalism.  Does Title VII prohibit discrimination against trans and homosexual individuals? Well, let’s see what it says.  It says that it prohibits discrimination because of sex.  What does “sex” mean here?  Well, according to the public meaning (more on this in a sec.) of the term when the law was enacted, it means “status as either male or female [as] determined by reproductive biology” (op. slip, 5).  Ok.  You can’t discriminate “because of sex.”  What does “because of” mean?  It establishes a but-for causality.  Gorsuch goes on to explain that an event can have multiple but-for causes, which means that sex need only be a necessary part of the decision.  As he puts it, “when it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff’s sex was one but-for cause of that decision, that is enough to trigger the law.” (6).  Gorsuch notes that this is sweeping, and “Congress could have taken a more parsimonious approach” (6).  But they didn’t.  He proceeds to similarly characterize discrimination.

On the intersection of masks and racist policing

Black men have to decide whether the risk of being harassed and profiled by police for wearing a mask is greater than the risk of contracting Covid for not wearing one.