"Well, you know, he's a bland, older white guy."

Says Adam Liptak about Justice Stephen Breyer. Liptak was asked, on the NYT "Daily" podcast — at 8:48 — why it is that Breyer is the Supreme Court Justice people have the least opinion about (according to a poll).

Breyer, we're told, took into account — in deciding when to leave the Court — a desire not to have his "legacy" undone by the person who replaces him, and that raised the question what is his legacy? Maybe the podcast listeners don't know. In an effort to enlighten them, Liptak began with the notion that Breyer is "a bland, older white guy."

Now, let's be clear. Liptak didn't say that because a person is male, old, and white he's bland. He piled "bland" onto the list of things that supposedly cause people not to have an idea of what Justice Breyer is about. But the suggestion is there: to be white is to be bland. Of course, Liptak isn't saying that white people are bland, only that people, seeing a white person, may get no further than to perceive him as bland.

I can see the argument that this perception is good. Let's begin, when we see a person, with a presumption of blandness. Nothing special about this person. A blank. We'll see if he does anything to distinguish himself. Until then: bland. And don't let that be white privilege. Give everyone this privilege. Until you know something about this individual, leave an open space. If they never put anything in that space — that space in your head — let them remain an enigma, nothing but potential. You do not know them, and maybe you never will.

"What the Trump Documents Might Tell the Jan. 6 Committee/Following last week’s Supreme Court ruling, the House panel has received material that it hopes could flesh out how the attack on the Capitol came about."

This is an article in the NYT, which I'm reading because what I hope is that the material will show that Trump wasn't involved in planning or promoting breaking into the Capitol or committing any illegal acts. And isn't that what everyone should hope? 

So I'm reading this article and setting to the side everything that is about Trump's belief that he really did win the election, his search for a legal path to victory, and his desire for a big, exciting rally showing strong support for this cause. 

So, what does the NYT list? I've copied and pasted the whole text into my compose window, and I will now cut out everything I just said I was setting to the side:

 

 

 

Okay. Now that I've done that... feel free to check my work. Maybe you'll say that the talk of seizing voting machines indicated a willingness to pursue a path that wasn't clearly legal, but it was only considered and then not done. Wasn't it part of brainstorming about what could be done if an election actually were being stolen? 

Let's consider the question hypothetically: What if an American presidential election were stolen? What could be done? What if it looked about like the 2020 election, but it really was a fraud? 

One answer might be: In the event of such a calamity, it would be best to go forward and treat the ostensible winner as the winner in order to maintain confidence in the system and to avoid the trauma of revealing and delving into the chaos beneath the surface. The true winner of the election should see the profound national interest in moving forward with a new President in office and fully in power — free of any cloud of uncertainty. The true winner should do nothing more than to offer strong support to his erstwhile opponent and to celebrate the beauty of democracy.

"When the court considers the Harvard and UNC cases, it would do well to reject the 'diversity' rationale entirely, or at least subject it to much tougher standards of review...."

"As one expert in an amicus brief supporting the plaintiffs pointed out, the 'Hispanic' or 'Latino' category lumps together such varied groups as Argentinians, Cubans, Mexicans and immigrants from Spain. 'Asian Americans'' include racial and ethnic groups that cover more than half the world’s population, such as Chinese people, Indians and Filipinos, among others. Such distinct groups as Arab Americans, native-born white Protestants and recent immigrants from Bulgaria are all classified as 'white.' 'African American' combines native-born Black Americans with immigrants from Africa and the Caribbean. Needless to say, these groups have vastly different histories. Lumping them into a few crudely defined categories makes a mockery of the idea that universities are genuinely pursuing diversity as opposed to engaging in gross stereotyping. Perhaps even worse, the diversity rationale could be used to justify all kinds of racial and ethnic preferences.... For many schools, however, the diversity rationale for racial preferences is likely a smokescreen for the real purpose: compensating minority groups that are victims of long-standing discrimination, particularly African Americans. This justification, which has largely been rejected by the Supreme Court, is much more logically compelling than the diversity theory."

Writes Ilya Somin at "Supreme Court affirmative action cases challenging Harvard, UNC policies are overdue/The Harvard suit features extensive evidence that the school’s admissions system discriminates against Asian American applicants" (NBC News). 

Somin says he has has "considerable sympathy" for the alternative rationale, but it's hard to imagine the Supreme Court switching from diversity to compensation for past discrimination, which it rejected as a basis for affirmative action long ago (in the 1970s). 

[T]o my knowledge I was the only Russian Jewish immigrant in my class at Yale Law School. Would 'diversity' justify Yale using ethnic preferences to make sure there was another the following year?

The words "make sure" load that question, but I think — as someone who has served on my law school's admissions committee many times — that it would be perfectly fine to read an applicant's file, find yourself on the line between yes and no, see that this person is a Russian Jewish immigrant, and go with yes. And that yes would be based on what the current doctrine requires — a prediction that this person's contributions will be beneficial to the class as a whole. It would not be based on the idea that Russian Jewish immigrants have been discriminated against in the past. 

How could I possibly assess all the various harms of the past and funnel the urge to compensate into this one applicant? There's no expertise to defer to. With diversity, there is a notion, however hazy, that the school's file-readers have some special intuition about putting together a good student body and making the classroom lively and full of challenging viewpoints. There's a mystique, a magic, a black box that the Court can decide to leave closed. I know many of you are scoffing at that box. But the easiest answer is to leave it closed, not to move to another rationale for affirmative action.

"The Supreme Court agreed Monday to hear challenges to the admissions process at Harvard and the University of North Carolina..."

"... presenting the most serious threat in decades to the use of affirmative action by the nation's public and private colleges and universities.... In the latest case, groups backed by a longtime opponent of affirmative action, Edward Blum of Maine, sued Harvard and UNC in federal court, claiming that Harvard's undergraduate admissions system discriminated against Asian American students and that UNC's discriminated against both Asian American and white students.... The challengers in both cases, Students for Fair Admissions, urged the justices to overrule the court’s 2003 decision on affirmative action, which upheld the University of Michigan's use of race as a plus factor and served as a model for similar admissions programs nationwide...."

NBC News reports.

"Curriculum transparency bills are just thinly veiled attempts at chilling teachers and students from learning and talking about race and gender in schools."

The ACLU tweets, quoted in "The ACLU Suddenly Reverses Its Support For Transparency/The long-time civil liberties organization continues its partisan transformation" (Inquire).

The ACLU tweet links to this NBC News article, "They fought critical race theory. Now they’re focusing on ‘curriculum transparency.' Conservative activists want schools to post lesson plans online, but free speech advocates warn such policies could lead to more censorship in K-12 schools." From that article: 

[T]eachers, their unions and free speech advocates say the proposals would excessively scrutinize daily classwork and would lead teachers to pre-emptively pull potentially contentious materials to avoid drawing criticism....

“It’s important we call this out,” said Jon Friedman, the director of free expression and education at PEN America, a nonprofit group that promotes free speech. “It’s a shift toward more neutral-sounding language, but it’s something that is potentially just as censorious.”

"The indictment [for seditious conspiracy] describes some Oath Keepers’ belief that 'the federal government has been coopted by a cabal of elites actively trying to strip American citizens of their rights.'"

"That [Stewart Rhodes, the leader and founder of the Oath Keepers], the leading defendant, graduated from one of the country’s most élite law schools, Yale, is more than just a fun fact. He developed his views on the Constitution as a law student eighteen years ago, and won a school prize for the best paper on the Bill of Rights. His paper argued that the Bush Administration’s treatment of 'enemy-combatants' in the war on terror was unconstitutional. Rhodes wrote that 'terrorism is a vague concept,' and that 'we need to follow our Constitution’s narrow definition of war and the enemy.' The argument would have found much support in liberal legal-élite and civil-liberties circles.... [I]n order to convict the defendants of seditious conspiracy, the government will have to prove that they planned their storming of the Capitol with the purpose of opposing the lawful transfer of Presidential power.... Rhodes’s seeming belief that his plan for January 6th was resistance to an unconstitutional process may seem wholly unreasonable.... But, if the case goes to trial... [s]ome jurors may find it difficult to convict Rhodes and others of seditious conspiracy if they find that sincere views about reality informed the defendants’ purpose.... Such an outcome might have the effect of adding legal legitimacy to the big lie.... Now that talk of potential 'civil war' occurs not only among extremist groups but in the mainstream press, a public trial of alleged seditionists will showcase the central fissure that could lead us there."

Writes Jeannie Suk Gersen in "The Case Against the Oath Keepers/Members of the group face seditious-conspiracy charges for their roles in the January 6th insurrection. Can a sincere belief that the election was stolen protect them?" (The New Yorker).

Gersen highlights the risk the government is taking, forcing public attention onto the seditious conspiracy charge: Americans will put effort into understanding the defendants' arguments, some unknown segment of us will agree with them, and many more will think the government has overreached because it cannot prove that they were insincere.

"How can the Washington Post say the court decisions on his vaccine or testing mandates were 'out of his control'?"

"Biden and his legal team are supposed to figure out a way to implement his policies that *won’t* get blocked by courts! Those court decisions didn’t happen at random; they happened because judges looked at what the administration did and decided that it didn’t comply with the law."

Writes my son John, at Facebook, commenting on "A year ago, Biden unveiled a 200-page plan to defeat covid. He has struggled to deliver on some key promises" (WaPo).

"Biden and his legal team are supposed to figure out a way to implement his policies that *won’t* get blocked by courts!" — We are all expected to pursue our goals and desires within the limits of the law. But we still can complain about the law that stands in our way and excuse our failure to achieve by pointing at this pesky law.

Sometimes you push the limits of the law and hope to convince judges. With a slightly different configuration of the Supreme Court, the vaccine mandate would have succeeded. Blaming the Court is worth doing to set up judicial appointments as a campaign issue.

And would the implementation of the vaccine mandate have served Biden's interests? Isn't he better off with it failing? He can point to it and say that he tried so hard and not be burdened with the realities of driving so many people out of employment, leaving businesses inadequately staffed, and imposing on the intimate personal bodily autonomy that his Party ordinarily celebrates. 

By the way: "Activists look ahead to what could be the 'last anniversary' for Roe" (NPR).

Speaking of the pending abortion case... did the Texas legislators "figure out a way to implement [their] policies that won’t get blocked by courts"? I'd say they deliberately overreached well-known law because they wanted to convince the Court to change it and, failing that, they wanted political credit for trying.

"Because the Court of Appeals concluded that President Trump’s claims [of executive privilege] would have failed even if he were the incumbent, his status as a former President necessarily made no difference to the court’s decision."

Said the Supreme Court, disposing of Trump v. Thompson with sublime efficiency. 

Justice Thomas would have granted what was an application for stay of mandate and injunction pending review.

Justice Kavanaugh wrote a statement that began:

The Court of Appeals suggested that a former President may not successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, at least if the current President does not support the privilege claim. As this Court’s order today makes clear, those portions of the Court of Appeals’ opinion were dicta and should not be considered binding precedent going forward....

It's clear... but he chooses to write about it anyway:

Without sufficient assurances of continuing confidentiality, Presidents and their advisers would be chilled from engaging in the full and frank deliberations upon which effective discharge of the President’s duties depends.

ADDED: Now that this decision has come out, I find myself very interested in finding out the specifics of what Trump said and did while the siege of the Capitol was under way. I could have accepted executive privilege for the reason Kavanaugh stated, but that isn't what's happening and I like the opportunity to find out this important information — after all we've been through, including the second impeachment. I hope it's a big letdown for Trump haters, but if it's not, it will be good to know.

"Puberty blockers and hormone therapy, the two treatments primarily given to minors, are most effective around the ages of 8 to 14, as they can prevent the need for future surgeries in adulthood..."

"... for example, a transgender boy who took puberty blockers might not need a mastectomy later. There are risks to the drug therapies, including slowed bone growth and fertility loss, but evidence suggests that denying the care to adolescents who need it raises the risk of depression and suicide. The push to outlaw such care altogether gained momentum last year as Republicans across the country adopted the issue.... A week before the [Arkansas] law was to go into effect, however, it was temporarily blocked by a federal judge in response to the A.C.L.U.’s legal challenge. The trial is set for July. Transgender adolescents and their families are now living with uncertainty. 'It’s pretty excruciating as a parent to be told by the state that it will become illegal to give your child what she needs to exist,' Jasmine Banks said. Zara added, 'It’s not, like, other people’s decision who I am and what I’m not.'" 

 From "In Arkansas, Trans Teens Await an Uncertain Future/Even as the medical community grapples with how best to provide care to transgender adolescents, some states seek to ban it outright" (NYT).

 

ADDED: Here's a London Times article from 2020: "Giving puberty blocker to ‘trans’ children is a leap into the unknown/A landmark legal review will examine claims that confused young people are being subjected to a giant medical experiment, says Janice Turner." 

An 11-year-old child is probably years from his or her first kiss. Yet the drug they are about to take will almost certainly lead to a medical pathway which will leave them sterile. Since their gametes will never be allowed to mature, doctors will not even be able to harvest their sperm or eggs. Can any 11-year-old understand the gravity of ruling out ever having children? 

Moreover can this child, for whom sex is an unimaginable, probably rather revolting adult business, consent to a treatment which will depress their future libido to the extent they may never have an orgasm? (Imagine trying to explain the concept, let alone the desirability, of an orgasm to an 11-year-old.) These are the ethical issues which make puberty blockers the most controversial of medications.... 

Triptorelin is presented by gender clinics as a “pause button” which need not stop puberty for ever but can give a “breathing space” while a young person decides whether they wished to proceed to transition.... The problem is that almost everyone who takes puberty blockers goes on to transition. Frozen Peter Pan-like, they see classmates develop into adults. Many have already “socially transitioned”, assuming opposite sex names and clothing. Going back is scary, so inevitably they press forward into cross-sex hormones. But would they have transitioned anyway? Most likely not.... 

Doubts about puberty blockers have come from senior clinicians, from LGBT campaigners worried that gender clinics are performing “gay conversion therapy” on future homosexual kids, and from feminists appalled that girls who do not conform to sexist gender stereotypes feel they cannot be girls....

"My sense is that a law or regulation is at best an opening bid. Is it binding, legally or morally? Maybe..."

"... but the presumption should be neutral at best, or, realistically, highly skeptical. After all, laws and regulations are the products of legislators and bureaucrats, who are presumptively corrupt and dishonest. And everybody know that, really."

Writes Glenn Reynolds, commenting on Ilya Somin's "Martin Luther King on the Ethics of Resistance to State Authority/Georgetown philosopher Jason Brennan offers a valuable summary of King's thought on these issues." 

Somin's piece is at Reason. Excerpt:

The obvious criticism of views like King's is that many people may have poor judgment about which laws are unjust. For example, those who stormed the Capitol on January 6, 2021 likely believed that enforcement of the laws against doing so would be unjust, because (in their view) Donald Trump had a right to stay in power. Similarly, both left and right-wing terrorists often believe they are justified in violating laws against murder and assault.

But the risk that individual citizens may be mistaken about matters of justice has to be balanced against the danger that government can be wrong about such things, as well. Even in democratic societies, there is a long and awful history of the latter. Throughout American history, many more people have been killed and oppressed by unjust exercises of government power than by individuals acting on mistaken assumptions about which laws are morally defensible. The toll of slavery and segregation (both imposed by law) alone easily outweighs that of all morally motivated private disobedience to law combined. The extent to which people should defer to the government's judgment on questions of justice depends heavily on how good that judgment is. All too often, the answer is that it is, at best, highly unreliable.

I'm not agreeing with everything I'm quoting. I'm offering it as worthy of contemplation and debate. 

"At oral argument, Justice Elena Kagan, one of the court's best questioners, sometimes... just shuts down... Still, her anger is often palpable, the color literally draining from her face. "

"And Justice Stephen Breyer on occasion just holds his head.... There isn't a lot of love lost among the court's six conservatives either.... If you watch carefully, you can see conservative eyes rolling from time to time.... [M]any of the conservatives are vying for the position of intellectual leader of the conservative majority, while the chief justice privately worries about going too far too fast. There are, in addition, some long and perhaps not so buried resentments among the conservatives. Alito on occasion barely conceals his disdain for Roberts.... In recent decades, the court has built its legitimacy on a certain degree of moderation — giving the left some of what it wanted and the right some of what it wanted. The left got gay rights and gay marriage, and some limits on presidential power exercised in the name of national security. And the right got expanded religious liberty and expanded free speech, which brought with it expanded corporate spending in elections.... But... the court's conservatives detest each other in the same way that the justices did in the 1940s. Back then, they couldn't agree on anything because, as [Noah] Feldman notes, 'they hated each other.' and even though they might have been able to to reach a consensus, they didn't 'because the hatred was so deep.' To cite just one example of how bad it was, Justice Felix Frankfurter called Justice William O. Douglas 'one of the completely evil men I have ever met.' And Douglas referred to the Austrian-born Frankfurter, who was Jewish, as 'Der Führer' and that was during World War ll."

Writes Nina Totenberg in "Supreme Court justices aren't 'scorpions,' but not happy campers either" (NPR). 

The "scorpion" quote refers to "9 scorpions in a bottle," a famous phrase that Totenberg doesn't give a source, perhaps because it's so famous, but perhaps because the usual attribution — to Oliver Wendell Holmes Jr. — seems incorrect. Noah Feldman's book "Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices Paperback" begins with the quote "The Supreme Court is nine scorpions in a bottle," attributed to Alexander Bickel, law clerk to Justice Felix Frankfurter, 1952–53, and drops this footnote:

"Stewart Rhodes, the leader and founder of the far-right Oath Keepers militia, was arrested on Thursday and charged with seditious conspiracy for organizing a wide-ranging plot to storm the Capitol..."

"... last Jan. 6 and disrupt the certification of Joseph R. Biden Jr.’s electoral victory, federal law enforcement officials said.... Mr. Rhodes, a former Army paratrooper who went on to earn a law degree at Yale, has been under investigation for his role in the riot since at least last spring when, against the advice of his lawyer, he sat down with F.B.I. agents for an interview in Texas. He was at the Capitol on Jan. 6, communicating by cellphone and a chat app with members of his team, many of whom went into the building. But there is no evidence that he entered the Capitol.... In an interview with The New York Times this summer, Mr. Rhodes expressed frustration that several members of his group had 'gone off mission' by entering the Capitol on Jan. 6, quickly adding, 'There were zero instructions from me or leadership to do so.' But at least four Oath Keepers who were at the Capitol that day and are cooperating with the government have sworn in court papers that the group intended to breach the building with the goal of obstructing the final certification of the Electoral College vote...."

The NYT reports.

"The Supreme Court on Thursday blocked the Biden administration from enforcing a vaccine-or-testing mandate for large employers..."

"... dealing a blow to a key element of the White House’s plan to address the pandemic as cases resulting from the Omicron variant are on the rise. But the court allowed a more modest mandate requiring health care workers at facilities receiving federal money to be vaccinated. The vote in the employer mandate case was 6 to 3, with liberal justices in dissent. The vote in the health care case was 5 to 4, with Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh joining the liberal justices to form a majority...."

The NYT reports.

Here are the opinions — NFIB v. OSHA and Biden v. Missouri.

From the OSHA case:

This is no “everyday exercise of federal power.” In re MCP No. 165, 20 F. 4th, at 272 (Sutton, C. J., dissenting). It is instead a significant encroachment into the lives—and health—of a vast number of employees. “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 6) (internal quotation marks omitted). There can be little doubt that OSHA’s mandate qualifies as an exercise of such authority. 

The question, then, is whether the Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures. See 29 U. S. C. §655(b) (directing the Secretary to set “occupational safety and health standards” (emphasis added)); §655(c)(1) (authorizing the Secretary to impose emergency temporary standards necessary to protect “employees” from grave danger in the workplace)....

From Biden v. Missouri:

[H]ealthcare facilities that wish to participate in Medicare and Medicaid have always been obligated to satisfy a host of conditions that address the safe and effective provision of healthcare.... [T]he Secretary routinely imposes conditions of participation that relate to the qualifications and duties of healthcare workers themselves.... Of course the vaccine mandate goes further than what the Secretary has done in the past to implement infection control. But he has never had to address an infection problem of this scale and scope before.... Vaccination requirements are a common feature of the provision of healthcare in America: Healthcare workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps, and rubella....

We accordingly conclude that the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19.

From the dissent in the Biden case. This is by Justice Thomas (joined by Justices Alito, Gorsuch, and Barrett):

“We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 6) (internal quotation marks omitted). And we expect Congress to use “exceedingly clear language if it wishes to significantly alter the balance between state and federal power.” Ibid. (internal quotation marks omitted). The omnibus rule is undoubtedly significant—it requires millions of healthcare workers to choose between losing their livelihoods and acquiescing to a vaccine they have rejected for months. Vaccine mandates also fall squarely within a State’s police power, see Zucht v. King, 260 U. S. 174, 176 (1922), and, until now, only rarely have been a tool of the Federal Government. If Congress had wanted to grant CMS authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly. It did not.

"Just as an MSNBC anchor is saying, 'We're also watching the Supreme Court. It could be a big day'"/"And just like with the Texas abortion cases, SCOTUS has faked us all out. No more opinions today"/"SCOTUS is definitely trolling us..."

 Commentary at SCOTUSblog just now.

"If the Chief Justice believes his political judgment is so exquisite, I invite him to resign, travel to Iowa, and get elected. I suspect voters will find his strange views no more compelling than do the principled justices on the Court."

Just a line from Tom Cotton I wanted to memorialize, quoted at Fox News.

It's of a piece with the sort of rhetoric about judges I've been reading for the last 50 years and more. I can't remember a time when I was able to understand anything about the Supreme Court when there wasn't a notion that what they are really doing is politics. And I saw "Impeach Earl Warren" billboards when I was first learning to read — back when I had no idea what "impeach" meant (something about a peach?) or who Earl Warren was.

So it's an old, old theme. But it plays well, and I think Tom Cotton found a spiffy way to do the phrasing. Instead of calling Roberts unprincipled, he points to the other justices — "the principled justices" — and imagines them finding the Chief's "views" "strange" and uncompelling. That's a nice variation on the theme.

And you've got to give Cotton credit for complexity. He addresses the Chief Justice and invites him to do something he's obviously not going to do, though it's more realistic and respectful than the common insults that tell people to do things — like go to hell or kiss my ass — that they're not going to do. "Invite" is polite, and running for President is very grand. But the idea is that if you ran for President with your agenda, you would lose. Cotton predicts the loss in an elegant comparison of voters to "principled justices," who, he suspects, would have the same low opinion of the Chief's ideas.

Now, the so-called "principled justices" oppose the Chief because he's finding something in the law that actually belongs in the political decisionmaking process, and if the Chief were to run for President, he would be taking these ideas to the place where the "principled justices" say they belong. So if the voters rejected these ideas, it would not be for the same reason the "principled justices" rejected them.

Ah! Now, I see the little flaw in Cotton's rhetoric! The only way the voters and the so-called "principled justices" could share the same opinion of the Chief Justice's "strange views" would be if the "principled justices" were thinking in political terms — in which case, they would be no more principled than the Chief Justice.

But if Tom Cotton is reading this — hi, Tom! — I know you already know how to get off that hook. You only said the voters and the "principled justices" would find the Chief's views to be equivalently compelling. It can still be the case that these views are not compelling in court, because they are not law but merely political, and that they are not compelling in the political arena, because people just don't like them.

Should have?

I'm giving this my "Althouse the pedant" tag, so stop now if you don't like where this is going. I'm reading the headline at The Washington Post, "Why Scalia should have loved the Supreme Court’s Title VII decision."

The man is dead. There's NOTHING he should have done.

Why not say "Why Scalia would have loved the Supreme Court’s Title VII decision"? I think I know why. The article is by George Conway. It's in WaPo. I'm going to say: They don't want to concede that Scalia would have joined the majority in this case, that he would have stuck to his principles (and that this case was truly an instance where these principles dictated the outcome the majority reached).

"The administration has been working to pursue a narrow definition of sex as biologically determined at birth, and to tailor its civil rights laws to meet it."

"Access to school bathrooms would be determined by biology, not gender identity. The military would no longer be open to transgender service members. Civil rights protections would not extend to transgender people in hospitals and ambulances. But the administration’s definition is now firmly at odds with how the court views 'sex' discrimination."

From "Supreme Court Expansion of Transgender Rights Undercuts Trump Restrictions/The ruling focused on employment discrimination, but legal scholars say its language could force expanded civil rights protections in education, health care, housing and other areas of daily life" (NYT).

Why is "sex" in quotes? I'd say the Court's case is also at odds with the effort to banish talk of sex and replace it with the concept of gender. I wonder, now will there be a new focus on sex?

Monday’s case was focused on employment law, a provision of the Civil Rights Act of 1964 known as Title VII. But Justice Neil M. Gorsuch’s opinion used language that is likely to apply to numerous areas of law where there is language preventing discrimination “because of sex” or “on the basis of sex.” Under the ruling, discrimination based on sexual orientation and gender identity ran afoul of the standard....

“They’ve ruled,” [President Trump] said. “I’ve read the decision, and some people were surprised, but they’ve ruled and we live with their decision.”

He's read the decision. Ha ha. Did anyone tell him it was 172 pages long before he concocted that lie? I assume it's a lie. And go ahead and bullshit that if you've read any of the opinion — a paragraph, say — you've "read the decision."

Anyway, I'm sure he doesn't mind the Supreme Court taking this pesky issue out of his hair.* "They’ve ruled and we live with their decision." If he really objected, he'd talk about how important it is to reelect him so he can appoint more Justices like Kavanaugh. Oh, but there is the complication that his #1 choice for the Supreme Court, Neil Gorsuch, wrote the opinion. He can't purport to have the power to control where the Court goes with all the legal issues.

But I don't think Trump is keen to hold back gay and transgender people. At most, he hopes to maintain the enthusiasm of the religious conservatives he needs to get reelected. But I don't think he is the slightest bit interested in reining in sexual — or gender — expression. Has he ever reined in his own?
______________________

* His orangified, poofed up, spray-spritzed hair.

"Today, we must decide whether an employer can fire someone simply for being homosexual or transgender."

"The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbid.

Writes Justice Gorsuch, and Chief Justice Roberts is with the majority as well.

The answer is clear, because we've got 2 of the conservative justices joining the liberals. Nice work!

I'm reading the live blogging at SCOTUSblog.

Here's the PDF of the opinion. 172 pages. SCOTUSblog explains:

Alito has a long dissent with at least 4 appendixes, Appendix D is full of images of government forms....

kavanaugh [dissenting] ends with: "Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII. I therefore must respectfully dissent from the Court's judgement. "

ADDED: From Alito's dissenting opinion, we see how much everyone pays obeisance to Justice Scalia:

The Court tries to convince readers that it is merely enforcing the terms of the statute, but  that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (emphasis added). If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation––not to mention gender identity, a concept that was essentially unknown at the time.

The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society. See A. Scalia, A Matter of Interpretation 22 (1997). If the Court finds it appropriate to adopt this theory, it should own up to what it is doing.

Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But 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.

I understand your argument, but right now, I am busy applauding.

ALSO: This does help Trump, of course.

PLUS: Here's something from the Gorsuch majority opinion:

By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex....

We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a “canon of donut holes,” in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception. Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. And that is exactly how this Court has always approached Title VII. “Sexual harassment” is conceptually distinct from sex discrimination, but it can fall within Title VII’s sweep. Oncale, 523 U. S., at 79–80. Same with “motherhood discrimination.” See Phillips, 400 U. S., at 544. Would the employers have us reverse those cases on the theory that Congress could have spoken to those problems more specifically? Of course not. As enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.

"It was while in the lower house of Congress that Franklin Pierce took that stand on the slavery question from which he has never since swerved a hair’s breadth."

"He fully recognized, by his votes and by his voice, the rights pledged to the South by the Constitution.... [W]hen the first imperceptible movement of agitation had grown to be almost a convulsion, his course was still the same. Nor did he ever shun the obloquy that sometimes threatened to pursue the northern man who dared to love that great and sacred reality — his whole, united, native country — better than the mistiness of a philanthropic theory.... With his view of the whole subject, whether looking at it through the medium of his conscience, his feelings, or his intellect, it was impossible for him not to take his stand as the unshaken advocate of Union, and of the mutual steps of compromise which that great object unquestionably demanded.... Those northern men, therefore, who deem the great causes of human welfare as represented and involved in this present hostility against southern institutions, and who conceive that the world stands still except so far as that goes forward,— these, it may be allowed, can scarcely give their sympathy or their confidence to the subject of this memoir. But there is still another view, and probably as wise a one. It looks upon slavery as one of those evils which divine Providence does not leave to be remedied by human contrivances, but which, in its own good time, by some means impossible to be anticipated, but of the simplest and easiest operation, when all its uses shall have been fulfilled, it causes to vanish like a dream. There is no instance, in all history, of the human will and intellect having perfected any great moral reform by methods which it adapted to that end; but the progress of the world, at every step, leaves some evil or wrong on the path behind it, which the wisest of mankind, of their own set purpose, could never have found the way to rectify."

From "The Life of Franklin Pierce" by Nathaniel Hawthorne, consulted on the occasion of the University of New Hampshire's idea that maybe it ought to rename its Franklin Pierce Law School.

"John Bolton, Donald Trump’s former national security adviser, wanted to write a book."

"He knew that the White House would do everything it could to stop him. He hired a flashy white-shoe law firm to handle the prepublication review process required by the nondisclosure agreement he signed when he got his security clearance. As expected, the White House weaponized the prepublication review process against him to keep him from publishing. If he published without approval, it said, he could face severe legal consequences. Then his lawyer, Chuck Cooper, wrote a Wall Street Journal op-ed this week intended to put public pressure on the White House. In it, Cooper volunteered that Bolton had violated both his NDA and perhaps a few criminal laws, including the Espionage Act. Now, even if Bolton’s book is never released, he is facing stiff penalties. As unforced legal errors go, that’s a doozy...."

From "Here’s How John Bolton’s Lawyer Just Threw Him Under the Bus/If you can be prosecuted for keeping a classified document in your garage, you can be prosecuted for giving it to your lawyer" (The Daily Beast).