Tuesday, June 16, 2020
The majority and dissenting opinions in the Title VII cases (Bostock and its companion cases) handed down yesterday provide a dizzying slew of dueling hypotheticals, but in fact the mistake inherent in Neil Gorsuch’s majority opinion is quite fundamental and can be captured in general terms. And the mistake dooms his reasoning precisely as a matter of textualism, not purposivism or policy.
To describe the error as succinctly as possible: Justice Gorsuch supposes that discriminating based on orientation or gender identity always entails discrimination based on sex, because orientation and gender identity vary with sex. But discrimination in the sense relevant to this part of Title VII concerns intent. And as a moment’s reflection shows, one’s intent—as well as any underlying beliefs and attitudes—can fix on feature X of a situation and not feature Y, even when X always comes with Y. (To put this firmly established point in technical terms: intentions, beliefs, and attitudes create what philosophers call "opaque" contexts.)
So an employer can be motivated by an intent—and associated beliefs or attitudes—concerning people of a certain orientation (or self-identification, or pattern of conduct), without relying on any intent, belief, or attitude concerning people of a particular sex (even though orientation turns on sex). And again, it’s these motivations—intentions, beliefs, and attitudes—that are essential to “discrimination against” individuals “because of” sex, as confirmed by Justice Bret Kavanaugh’s analysis of the ordinary meaning of that phrase taken as a whole, and Professor James Phillips' recent study relying on linguistic principles and systematic data. As Phillips summarizes the point, the operative language of Title VII, read in light of established linguistic principles and enactment-era data, requires differential treatment based on “unfair beliefs or attitudes directed at some or all men in particular, or at some or all women in particular—whether the beliefs be outright misconceptions or just unduly rough or weak generalizations; and whether the attitudes be indifference, discounting of interests, distaste, or outright antipathy."
Again, Kavanaugh's and Phillips' analyses show that this reading is superior precisely as a faithful reading of the text. And as Professor Phillips’ replies to critics confirm (here and here), this reading also fits the reasoning of all the Court’s Title VII precedents—until yesterday. Yesterday's decisions contradict this faithful textualist reading of Title VII for a simple reason: an employer motivated by an intent, belief, or attitude about people engaging in certain forms of sexual conduct, for example, needn’t have any motivation (intent, belief, or attitude) at all that is specifically about, say, women (individually or as a group).
June 16, 2020 | Permalink
Monday, June 15, 2020
I've spent much of today and this evening reading and re-reading the opinions in Bostock v. Clayton County. I respect Neil Gorsuch, whose nomination and confirmation I outspokenly supported, and I want to understand his position and reasoning. There is, however, no way to avoid the conclusion that the argument he bought is sophistical and the position he endorsed is untenable. Sam Alito’s opening sentence in dissent is devastatingly accurate: “There is only one word for what the Court has done today: legislation.”
The legislation handed down by the Court will have far-reaching consequences, including the eventual destruction of all-women’s sports. As I tell my students, and constantly remind myself, "remember, when you sign on to a proposition you are signing on to all it logically presupposes and entails." It's very well to say, "thus and so matter is not before the Court and we haven't had the benefit of adversarial briefing and argument," but that does not cancel the mercilessness of logic. Reasonable people of goodwill can and do disagree about whether the logical and therefore foreseeable consequences of this piece of judicial legislation are good or bad, desirable or undesirable; but whether one favors or opposes legislation designed to produce those consequences, one should condemn the decision precisely because it is legislation. The Court has not applied the law as written; it has re-written the law.
The Bostock ruling (further) politicizes the judiciary and undermines the very thing courts exist to uphold: the Rule of Law. It will destroy what faith remains in the moral and intellectual integrity of our courts. It also vindicates Adrian Vermeule’s warning to conservatives that trying to combat the longstanding "progressive" strategy of imposing a substantive moral-political agenda through the courts by appointing "originalist" and "textualist" judges is hopeless. Conservatives, Professor Vermeule famously argued, need to shift to their own version of liberal legal theorist Ronald Dworkin’s “moral reading” of the Constitution and laws to advance a socially conservative moral and political vision. Who is to gainsay him now? One might say--I have myself said, repeatedly, in my criticisms of my teacher Professor Dworkin--"The so-called moral reading can only function as a pretext for legislating from the bench. It abandons the idea of law and the ideal of the Rule of Law, erasing the distinction between adjudication and legislation, law and politics." But that observation (which I continue to believe is true) either from increasingly warranted cynicism or sincere conviction (or a bit of both) will be met with the rejoinder: "The idea and ideal were abandoned long ago. Have you only just noticed? It may be sad, but it's all-too-true. To continue trying to shore them up is a fool's errand. It could only work when both sides in a political or ideological struggle play by the rules. But nearly all Democrat-appointed judges and half the Republican-appointed judges refuse to play by them—always to the advantage of secular progressive ideology and in furtherance of its goals. It's a different game now. For conservatives to suppose otherwise is for them to adopt the pathetic and degrading role of the Washington Generals: showing up every night at a rigged game to be the losers."
Some people are questioning Justice Gorsuch's good faith and saying that he betrayed the conservative movement and the Republican Party. These, I think, are misguided claims. Judges and justices, whether nominated and confirmed by Republicans or Democrats, whether supported by conservatives or liberals, owe their supporters and their party precisely (and nothing more than) what they owe everyone else, namely, a faithful application of the Constitution and laws as written. The tragedy of Bostock is that, despite Justice Gorsuch's desire to practice an authentic textualism, he failed to provide that, just as previous Republican appointees Sandra Day O'Connor, Anthony Kennedy, and David Souter so often--and often spectacularly--failed to provide it. Such failures always wound the Rule of Law. Coming on top of so many other cases in recent decades, this one may finally discredit it in the eyes of many who have struggled to retain their faith in it.
June 15, 2020 | Permalink
Thursday, June 11, 2020
From the third of his Barsetshire Novels, "Dr. Thorne." Of possible use in Professional Responsibility when the subject of "professionalism" and its many senses arises.
Then also, Dr. Thorne, though a graduated physician, though entitled beyond all dispute to call himself a doctor, according to all the laws of the colleges, made it known to the East Barsetshire world, very soon after he had seated himself at Greshamsbury, that his rate of pay was to be seven-and-sixpence a visit within a circuit of five miles, with a proportionately increased charge at proportionately increased distances. Now there was something so low, mean, unprofessional, and democratic in this; so, at least, said the children of Aesculapius gathered together in conclave at Barchester. In the first place, it showed that this Thorne was always thinking of his money, like an apothecary, as he was; whereas it would have behoved him, as a physician, had he had the feelings of a physician under his hat, to have regarded his own pursuits in a purely philosophical spirit, and to have taken any gain which might have accrued as an accidental adjunct to his station in life. A physician should take his fee without letting his left hand know what his right hand was doing; it should be taken without a thought, without a look, without a move of the facial muscles; the true physician should hardly be aware that the last friendly grasp of the hand had been made more precious by the touch of gold. Whereas, that fellow Thorne would lug out half a crown from his breeches pocket and give it in change for a ten-shilling piece. And then it was clear that this man had no appreciation of the dignity of a learned profession. He might constantly be seen compounding medicines in the shop, at the left hand of his front door; not making experiments philosophically in materia medica for the benefit of coming ages – which, if he did, he would have done in the seclusion of his study, far from profane eyes – but positively putting together common powders for rural bowels, or spreading vulgar ointments for agricultural ailments.
I've been thinking about Yuval Levin's most recent book, A Time to Build, during the last few weeks, especially as just (albeit very risky) protests too often have been hijacked by those who would not build but destroy.
Levin's book is a robust defense of institutions: "durable forms of our common life...frameworks and structures of what we do together." If it wasn't clear when the book was published just months ago, it is crystal clear today: American institutions at every level are crumbling.
His claim -- illustrated over chapters on Congress, journalism and the professions, academia, social media, and the family and church -- is that our formative institutions have been deformed into organizations used for individual performative self-expression. This wordplay repeated throughout the book makes for a memorable thesis and one that seems perfectly true to our time.
We trust institutions when they routinely perform certain social functions integral to their very purpose -- as when police protect lives rather than brutally take them. But we also rely on institutions to intentionally shape the people within them to live according that purpose. Institutions mold individuals -- or they fail to be what they are. But today we too often deny that individuals are even in need of such molding.
To see institutions as platforms for performance is to deny them their role as molds of character, and by extension to deny our very need for such formation. Our culture now often does deny that need. Both the libertarian and progressive ideals of freedom assume a human person already fully formed requiring only liberation from oppression of various sorts....
The vision of the human person underlying these assumptions is loaded with very high expectations of the individual, but it therefore makes only modest demands of institutions. Left to himself, the individual can exercise his capacities and pursue the good; our institutions need only to enable him -- if not, indeed, to display and promote him.
But this vision has always been opposed in our traditions by a far more skeptical view, which assumes that a person begins imperfect and unformed -- not to say fallen....It assumes that each of us is born deficient but capable of moral improvement, that such improvement happens soul by soul, and so cannot be circumvented by social or political transformation, and that this improvement -- the formation of character and virtue -- is the foremost work of our society in every generation. To fail to engage in it is to regress to pre-civilizational barbarism. This work is the essential, defining purpose of our institutions, which must therefore be fundamentally formative....
Many Americans are not lucky enough to have the benefit of a flourishing family or the opportunity for rewarding work or an uplifting education or a thriving community or a humbling faith, let alone all of these at once. But some combination of these soul-forming institutions is within the reach of most, and the work of reinforcing them, sustaining the space for them, and putting them within the reach of as many of our fellow citizens as possible is among our highest and most pressing civic callings.
Let's get to work.
Reversing a precedent set by the Obama-era National Labor Relations Board, President Trump’s appointed board on Wednesday said it doesn’t have jurisdiction over faculty members at religious colleges and universities.
The decision, concerning Bethany College, a Lutheran liberal arts institution in Kansas, heartened some religious education groups and First Amendment hawks who believe that the NLRB, a government entity, should have no say in how religiously affiliated campuses are run. Full article at Inside Higher Ed.
Personally, I am glad to see the NLRB refuse jurisdiction here and to allow religiously affiliated colleges and universities to make decisions when it comes to adjunct or part-time employment. As mentioned in the article, this decision “might be the catalyst for an informed discussion among individuals and institutions of goodwill to create a non-NLRB procedure and process.” This should be a time, especially for Catholic colleges and universities, to address the complexities that come with adjunct teaching. As Catholic Social Teaching tells us, it’s unjust to exploit someone’s labor or not consider what a living wage might be. However, we must consider that institutions of higher education often seek adjunct teaching from professionals already gainfully employed who are interested in teaching an occasional course. There are other circumstances where someone might wish to serve as an adjunct instructor but not seek or require full time employment, such as retirement or semi-retirement. The instances where individuals take on multiple adjunct courses at once and then try to assert rights to full time benefits or to unionize strike me as being built on dishonesty and a faulty foundation for both the employee and the employer. With nearly two hundred Catholic institutions of higher learning in the U.S., we should strive for a model where people are compensated fairly for their labor, and also defend the rights of the institutions themselves to make personnel decisions like any other religious organization. It seems to me, as someone who has attended four Catholic universities and worked in Catholic higher education for over a decade, that the smaller schools relying heavily on adjunct labor need to be more creative. This probably means creating more lecturer type teaching positions that pay a decent wage and make the people in those positions feel valued and part of the campus community.
June 11, 2020 | Permalink
As politicos speculate about Joe Biden's pick for VP, I'll just put my suggestion out there: Katrina Jackson of Louisiana, smart, courageous, "whole life" African American Democrat and chief sponsor of the law that is now before the Court in June Medical. She took down the house at the March for Life this year, singing the praises of the pro-life legislature of her state: "Every day that I walk into the state capitol, I am greeted by pro-lifers regardless of whether they’re black, white, Republican, Democrat, male, female.”
The Advocate reports:
Throughout her eight years in the state Legislature, the Monroe Democrat has been a leader in the Legislative Women's Caucus and Legislative Black Caucus. She's made impassioned pleas for restoring voting rights to convicted felons. She has sided with gun restrictions. She's joined efforts to abolish the death penalty. And she supports increasing the state’s minimum wage -- just to name a few of the positions she shares with the more liberal wing of her party.
But when it comes to abortion, she’s established herself as a leading voice —not just on the state level but on a national stage — in the fight to bring an end to what she has said she considers "a modern-day genocide."
The state senator "sees no conflict between her opposition to abortion and the core values of her party since she sees abortion as a tool of racial and economic oppression."
It's just that Biden seemed to understood all this himself back when. Testifying in favor of the Pregnancy Discrimination Act in 1977, Biden said, "In a very real-world-sense what this denial of freedom [because of discrimination] means is that many women, especially low income women, may be discouraged from carrying their pregnancy to term. To put it bluntly they will be encouraged to choose abortion as a means of surviving economically."
But I suppose abortion can't be a tool of oppression any more because, well, it's "health care." Hogwash.
Wednesday, June 10, 2020
Notre Dame’s Daniel Philpott authored an article in America that addresses a recent executive order and its connection to the persecution of Uighur Muslims in China. Philpott is correct when he says that this executive order has received little attention.
Has anyone read the executive order? Religious freedom advocates might well be frustrated that tear gas and controversy occluded a measure whose very purpose is to lift the cause of religious freedom out of the shadows. The second sentence of the order contains words that these advocates have been waiting for years to hear a president utter: “Religious freedom for all people worldwide is a foreign policy priority of the United States, and the United States will respect and vigorously promote this freedom.”
Full article here.
June 10, 2020 | Permalink
Tuesday, June 9, 2020
My advice to my students is the same as my advice to myself--and to everyone: Seek the truth. Speak the truth as best you understand it. Do not permit yourself to be bullied into silence. Do not allow yourself to be shamed into saying things you don't believe or expressing yourself inauthentically--by, for example, embracing movements or endorsing slogans about which you have reservations. Do not let fear of the mob or lust for acceptance or applause--or the desire to get ahead--dictate what you say and don't say.
When you feel the temptation to "go along to get along," resist it. (You may find the words "get thee behind me, Satan" helpful.)
Do what you think is right, with (as Lincoln said) "firmness in the right, as God gives us to see the right." But do not immunize your views and actions from criticism. Remind yourself--often--of your own fallibility. Engage those who do not share your views and be open to their questions and challenges. Respect others and do not let disagreement destroy friendships or prevent them from being formed.
Do not demonize thoughtful people--you will find there are many--who arrive at conclusions different from yours on important questions. It is possible that they are right, or partially right, and your view should be abandoned or revised. Avoid wrapping your emotions so tightly around your convictions that you become a dogmatist. Try your best to avoid looking at things through an ideological lens or some particular narrative. Otherwise you will interpret everything you "see" as reinforcing what you already believe. Examine things from different angles and perspectives. Don't allow yourself to grow so deeply attached to your opinions that you favor them over truth itself. Falling in love with your opinions will blind you to truth. Contrary to popular belief, a self-critical spirit does not induce paralysis. Strive to be your own best critic.
Think for yourself. Never outsource that job. Shun conformism and groupthink. In fact, learn to shudder when you see them. They are the road to Hell. Don't be a knee-jerk contrarian. Don't be a knee-jerk anything. But remember that the crowd is often wrong. History is replete with examples--tragic ones.
Bear constantly in mind that though misfortune or evildoers can take nearly everything else from you, they cannot take something inestimably precious: your integrity. That is something entirely in your hands and under your control. If it is lost, it is because you gave it up. Hold onto it tightly; never yield it.
Teach your children well.
June 9, 2020 | Permalink
Monday, June 8, 2020
Friday, June 5, 2020
My friend (and now, my boss at Notre Dame Law School) Marcus Cole has written an essay reflecting on the killing of George Floyd and on his own personal experiences with violent racism. Apologies for the long post, but I'm just pasting it (with his permission):
I am George Floyd. Except, I can breathe. And I can do something.
G. Marcus Cole
Over the past several days, I have received numerous messages of care and support from
friends, neighbors, and acquaintances, each of whom simply wanted to express their concern for
how I might be feeling in the wake of the murder of George Floyd. For many, I am perhaps one of
the only African-American men in their social or business circles. Others, especially those who
know me well, are cognizant of my own personal experiences with racial violence. Their
expressions of love and support are rooted in the fact that the circumstances surrounding the deaths
of George Floyd and Ahmaud Arbery are strikingly similar to my own accounts of an attack on
my father over fifty years ago, one I witnessed as a little boy. What my friends may not know, but
surely suspect, is that each report of racial violence at the hands of a police officer or group of men
brings to the surface the vivid memories of that terrible night.
On a hot summer Friday evening, my little sister asked my parents for strawberries. We
lived in a predominantly Orthodox Jewish neighborhood in Pittsburgh, Pennsylvania, and so all of
the stores were closed. But my sister wanted strawberries, and my father wanted to get them for
her. So, he loaded me, my sister, and my baby brother into the back seat of our car, and drove to
another neighborhood to get strawberries. As we returned home, my father noticed that we were
being followed by another car. Suddenly, that other car swerved in front of us and stopped, forcing
our car to halt at the curb. In an instant, three white men, all in their twenties, jumped out of their
car and rushed to ours. They dragged my father out of the car, and began to beat him with tire
irons, a crow bar, and a baseball bat. They did this in full view of his three little children. When
neighbors came out, the three men jumped back into their car and sped off, leaving my father for
dead on the hood of our car. I can still see his hand reaching for me against the windshield covered
with his blood.
While my father survived that night, he lived the rest of his life with a surgically
reconstructed eye socket, complete with a plate in his face that set off metal detectors. But his were
not the only scars that those men left. If it were not for our neighbors, I often wonder whether my
little sister, baby brother and I would have survived that night. I often think about my failure to
remember the license plate number when asked by the police. And while I can still see the taillights
of the car through that bloody windshield, I know that those men will never have to answer for
what they did to us. At least not in this life.
It would be one thing if I could have been assured then, or even now, that such a thing
could never happen again. My own experience proves that it can.
As an African-American man, I have had the experience of being pulled over by a police
officer, with no apparent or expressed reason for the stop. I have been berated and verbally abused,
without receiving a ticket or a warning. The most scarring of these events occurred in front of my
two little boys, who are now grown, African-American men themselves. The police officer was
intent on nothing more than humiliating and emasculating me in front of my small children, hoping
to provoke me to respond. At that moment, I remember thinking that the most important thing I
could do for my sons was to survive the encounter. Still, I have often thought about what lasting
scars may have cut into their psyche by watching what that officer did to me that night. I often
wonder what my sons think of me, as a man, and as their protector, knowing that I could not fight
Yes, I am alive, and George Floyd is dead. I can breathe; he cannot. But just because a
police officer did not murder me or my children does not mean that he did not harm us.
Like many African-American men, my experiences are far too common. While they have
never left me, these memories are all too frequently brought back to the surface by watching the
videos that have become routine on American televisions and mobile telephones. The callous
murders of unarmed men like Ahmaud Arbery and George Floyd are real for me. That could have
been my father. That could have been me. That could be either one of my sons. And in a very real
sense, like many other African-American men, I am George Floyd. Except, I can breathe. And I
can do something. I must do something.
While my education and position do not grant me immunity from racial violence, they do
place me in a position to do something about it.
I am a lawyer, a law professor, and Dean of one of the nation’s leading law schools. As the
Dean of Notre Dame Law School, I have a special allegiance to the legacy of Father Theodore
Hesburgh. In addition to his role as the longtime President of the University of Notre Dame, Father
Hesburgh was the Chair of the United States Commission on Civil Rights. When his stance for
social justice caused President Richard Nixon to demand his resignation from the Commission,
Father Hesburgh continued his efforts by founding the Center for Civil Rights at Notre Dame Law
School. Early in its existence, the Center broadened its advocacy to International Human Rights.
Today, Notre Dame Law School equips lawyers from all around the world with the training and
tools they need to fight for human rights. The murder of George Floyd has shown us that we must
also cast our gaze closer to home.
It is urgent that we recognize that human rights are under threat all around the world,
including here in the United States. This reality must be acknowledged, and addressed. To do so,
I want to restore Father Hesburgh’s original vision for Notre Dame Law School by taking three
First, I will work with my faculty colleagues at Notre Dame to restore Father Hesburgh’s
vision for our Master of Laws in Human Rights. This program will continue to train lawyers from
around the world, and also lawyers interested in advancing the fight for human rights here in the
United States. We will fully fund students selected to train at Notre Dame Law School for a career
defending civil and human rights in the United States, in the same way that we do for those training
to defend human rights in other countries.
Second, I will work with Notre Dame faculty, alumni, and benefactors to fully fund
fellowships for, and actively recruit, exceptional applicants for our Juris Doctor program
committed to the cause of civil rights. Our goal will be to provide Notre Dame lawyers for every
community in this country to stand vigilant against violations of civil and human rights, wherever
those threats might arise.
Third, I will ask the Notre Dame Law School faculty to establish a new Exoneration Law
Clinic, aimed at releasing from the criminal justice system those who are victims of prosecutorial
or police misconduct. We will return fathers and mothers to their sons and daughters, particularly
when their only “crime” was to be born the wrong color.
These are things that I, in my position, can do. But it is not enough. I cannot do this alone.
Each of us must do what we can, wherever we are.
One thing that each and every one of us can do is to end the cycle of hate by ending the
separation that leads to it. This racial separation and violence will not end until we stop waiting
for African-Americans to enter our circles. Each of us needs to get to know people who differ from
us. We must all make a conscious decision and effort to expand our circles.
The Rev. Dr. Martin Luther King, Jr. spoke in King Chapel at Cornell College, Mount
Vernon, Iowa, on Oct. 15, 1962. He said,
I am convinced that men hate each other because they fear each other. They fear each
other because they don’t know each other, and they don’t know each other because they
don’t communicate with each other, and they don’t communicate with each other because
they are separated from each other.
Each one of us can choose to finally end hate, by ending this separation. We must do
something. This is something each one of us can do.
I am committed to doing three things to change this world for the better. Please join me.
What three things can you do to make this world a better place? How can I help you?