Monday, November 25, 2019

The Latest Defense for Anti-Gay Discrimination

Andrew Koppelman

It’s now more than a month since the Supreme Court heard oral argument in Bostock v. Clayton County on whether federal law prohibits anti-gay discrimination, and suddenly conservatives have focused their attacks on what might seem like an improbable target: Justice Elena Kagan’s insistence on the importance of the plain language of the law. This is a position known as “textualism,” often associated with conservatives such as the late Justice Antonin Scalia.

But within 72 hours, between November 19 and November 22, National Review and The Wall Street Journal published similar criticisms of Kagan, claiming that her textualism is counterfeit. The near-simultaneous attacks may be a coincidence, or they may mean that conservatives have learned something about what’s happening in the Court’s chambers—something that worries them.

I elaborate in The American Prospect, here.

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