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High Court Sidesteps Scalia Legacy

the late us supreme court justice antonin scalia

The late U.S. Supreme Court Justice Antonin Scalia at the National Press Club in Washington, D.C., in 2014. (Alex Wong/Getty Images)

By Wednesday, 17 June 2020 02:41 PM Current | Bio | Archive

The U.S. Supreme Court ruled 6-3 Monday that Title VII of the Civil Rights Act of 1964 prohibits employers from discharging employees on the basis of their sexual preference or gender identity, prompting two separate dissenting opinions.

It was an affront both to the Supreme Court’s function and to the legacy of the late Justice Antonin Scalia.

Title VII prohibits employment discrimination based on race, color, religion, sex and national origin.

It neither says nor implies anything about lesbians, gays, bisexuals, or transgender individuals. In order to rule in the manner in which it did, the high court had to include words and phrases that clearly weren’t there.

Justice Samuel Alito drafted a scathing dissent, calling the majority opinion "preposterous," one that blurred the lines separating the legislative and judicial branches.

"According to the Court, the text is unambiguous. The arrogance of this argument is breathtaking. As I will show, there is not a shred of evidence that any Member of Congress interpreted the statutory text that way when Title VII was enacted. But the Court apparently thinks that this was because the Members were not 'smart enough to realize' what its language means."

He added, "The question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not."

Justice Brett Kavanaugh wrote a separate, more measured dissent, one in which he distinguished "ordinary meaning" from "literal meaning," and argued that the court should adhere to the ordinary meaning of words and phrases written into statutes at the time they were enacted.

"Consider a simple example of how ordinary meaning differs from literal meaning,” he wrote. “A statutory ban on ‘vehicles in the park’ would literally encompass a baby stroller. But no good judge would interpret the statute that way because the word ‘vehicle,’ in its ordinary meaning, does not encompass baby strollers."

The late Justice Scalia was a firm believer in textualism, sometimes called the plain language rule, which was the subject of a 2004 Montana Law Review article.

It stated, "Justice Scalia's version of the plain language rule is commonly referred to as "the new textualism. The new textualism is simple. According to William Eskridge, ‘[W]hen construing statutes, consider the text, the whole text, and nothing but the text. Period.'" 

Carrie Severino, the president of the Judicial Crisis Network, a Washington, D.C.-based nonprofit "dedicated to strengthening liberty and justice in America," was appalled by the court’s decision to bastardize textualism.

"Today six judges acting as advocates opted to rewrite the statute themselves, short-circuiting the legislative process and in the process denying the people a decision that should be theirs to make on a major issue," said Severino, who formerly clerked for Supreme Court Justice Clarence Thomas.

"Have no doubts about what happened today: This was the hijacking of textualism," she continued. "You can't redefine the meaning of words themselves and still be doing textualism. This is an ominous sign for anyone concerned about the future of representative democracy."

No one is making the claim that the LGBTQ community should be denied employment protections. The argument is rather that those protections should be drafted and approved by Congress, who could carve out exceptions for religious organizations, and then signed into law by the presidentas the Constitution requires.

Scalia also adhered to the plain meaning of the words of the Constitution, and rejected the notion that it’s a "living document" — one that changes with the times.

"It’s not a living document," Scalia said at the Dallas-based Southern Methodist University, according to Politico. "It’s dead, dead, dead."

After Scalia’s death in February of 2016, then-President Barack Obama nominated D.C. Circuit Court of Appeals Judge Merrick Garland to take his place. The GOP-led Senate refused to confirm him, however, arguing that it was an election year and the next president should appoint Scalia’s successor.

President Donald Trump appointed 10th Circuit Court of Appeals Judge Neil Gorsuch to replace Scalia’s voice.

Gorsuch wrote the majority opinion of the court, reading words and phrases into Title VII that were clearly never intended.

Severino, who also co-wrote "Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court" with The Federalist’s Mollie Hemingway, had something to say about Gorsuch’s decision to abandon textualism, and with it, Scalia’s legacy.

"Justice Scalia would be disappointed that his successor has bungled textualism so badly today, for the sake of appealing to college campuses and editorial boards,"  she said. "This was not judging, this was legislating — a brute force attack on our constitutional system."

The fact that six members of the high court rejected textualism in favor of judicial activism would have disappointed Scalia. That his successor was the one to deliver the fatal blow would have been, in the words of Shakespeare, the "most unkindest cut of all."

Michael Dorstewitz is a retired lawyer and has been a frequent contributor to BizPac Review and Liberty Unyielding. He is also a former U.S. Merchant Marine officer and an enthusiastic Second Amendment supporter, who can often be found honing his skills at the range. Read Michael Dorstewitz's Reports — More Here.

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The fact that six members of the high court rejected textualism in favor of judicial activism would have disappointed Scalia.
civil, rights, act
Wednesday, 17 June 2020 02:41 PM
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