Monday, July 06, 2020

Bostock: Were the liberal justices namudnoed?

Jason Mazzone

namudno (verb): to persuade one’s colleagues (esp. on a court) to sign onto an opinion with broader implications than they perceive and then accuse them of backtracking when they later resist said implications.
Many commentators wonder whether the current Supreme Court will overrule Roe v. Wade (by which they really mean Planned Parenthood v. Casey). My own view is that the Court is far more likely to do away with affirmative action than with the right to obtain an abortion. This term supports that prediction with the Court’s decisions in June Medical Services (invalidating a Louisiana requirement that abortion providers have hospital admitting privileges) and Bostock (holding that an employer who fires an individual for being gay or transgender violates Title VII).

Justice Gorsuch in Bostock lays some groundwork for a future decision holding sex- and race-based affirmative action in employment and university admissions (and other contexts) illegal as a matter of federal statutory law. Along the way, Gorsuch seems to have namudnoed the Court’s four liberals, who signed fully onto his opinion (and did not issue any opinions of their own).

As many readers will know, Northwest Austin Municipal Utility District No. One [NAMUDNO] v. Holder is the 2009 decision in which the Court, in an opinion by Chief Justice Roberts joined in full by all members of the Court except for Justice Thomas, held that a small utility district challenging the coverage and pre-clearance provisions of the Voting Rights Act was entitled to seek a bailout from the VRA’s provisions. In his opinion, Roberts highlighted the “federalism concerns” the VRA presented. However, in light of the statutory ruling, Roberts concluded that “[w]hether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.”

Four years later, Roberts authored the Court’s opinion in Shelby County v. Holder, ruling that the VRA’s coverage formula was unconstitutional and thus did not support the pre-clearance requirements. This time, the Court’s ruling was 5-4. In the course of his opinion, Roberts repeatedly invoked and quoted from Northwest Austin, which he presented as foretelling the outcome. “[W]e expressed serious doubts about the Act’s continued constitutionality,” Roberts wrote of Northwest Austin; “[e]ight Members of the Court subscribed to these views, and the remaining Member [Justice Thomas] would have held the Act unconstitutional.” In her dissent, Justice Ginsburg—fairly described as having been hoodwinked—complained about Roberts’ reliance on broad language from Northwest Austin.

In Bostock, the absolutist language in Gorsuch’s opinion (joined, recall, by all four liberals) about Title VII is readymade for a future ruling that Title VII prohibits sex-based affirmative action by covered employers. And if that is true, the same outcome may hold with respect to race and other Title VII categories—and extend also (under Title VI and Title IX) to university admissions and other practices (and those of other entities receiving federal funding) that take account in any way at all of race or gender (or other barred factors). In a nutshell, even if by enacting these statutory provisions Congress did not imagine it was making affirmative action illegal (say because it aimed instead to equalize the workforce and the university) that is what the plain statutory text does.

Bostock has lots of language that will aid a future court. Besides Gorsuch’s general admonition that “[o]nly the written word is the law, and all persons are entitled to its benefit,” on page after page of his opinion we find statements that would seem to doom affirmative action measures. Recall the Grutter idea of diversity (in university admissions and as a matter of equal protection) as one factor in a holistic review of a candidate’s candidacy. Bostock takes a sledgehammer to that notion with its extensive discussion of causation. “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. . . . It doesn't matter if other factors besides the plaintiff's sex contributed to the decision.” Likewise, Gorsuch emphasizes that to discriminate (in violation of Title VII) means (quoting Webster’s) “[t]o make a difference in treatment or favor (of one as compared with others)." And (consistent with a common criticism that affirmative action measures do not treat individuals as individuals) Gorsuch emphasizes over and over that Title VII focuses on the interests of individuals not groups.

At a minimum Bostock invites a new round of cases on the lawfulness of affirmative action in employment, university, and other settings.

Of course, the liberal justices will be unlikely to join a future ruling holding that, with Bostick on the books, federal statutory law makes all affirmative action unlawful. But after Northwest Austin and Shelby County it is notable that they said nothing to trim the reach of Gorsuch’s approach.

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