Mr Dooley, right again (crosspost from Crooked Timber)

The decision of the US Supreme Court, that the Civil Rights Act prohibits discrimination based on sexual orientation and gender identity was entirely predictable, based on the century old observation of the fictional Irish-American bartender Mr Dooley observed “The Soopreme Court follows the illiction returns.” As I said in 2018

At most, the court constitutes a veto point, able to block legislation that can be represented as violating constitutional protections. But most of the progressive agenda is clearly within the power of the legislature and executive. If the Democrats win the next few elections, the Roberts Court will be as much of a disappointment to its creators as the Warren Court in the 1960s

A decision restricting the interpretation of the Civil Rights Act would have had huge political costs for the Republican majority, without achieving any long term results. In the quite likely event that the Democrats gained control of both the Presidency and Congress sometime in the next few years, the decision would probably have prompted a new and even broader Civil Rights Act, as well as a potential trigger for expanding the court to create a Democratic majority. Even if this didn’t happen, the remaining state-level restrictions would have been chipped away in a series of losing campaigns for the right. From Roberts’ viewpoint the key goal has to be to keep bringing down decisions like Citizens United, which entrench Republican advantages. As for Gorsuch, the advantages are even clearer. His appointment is widely regarded as illegitimate, and a decision showing that “textualism” means “rightwing interpretations of the text” would have entrenched that. As it is, he can present himself as someone who, while conservative, is not a partisan hack.

It will be interesting to see how this plays out on the right. Roughly speaking, I’d expect the hard neoliberals to welcome the fact that this unwinnable fight is over. By contrast, the culture warriors who back Trump will be furious. Apparently, many are expecting a sweeping win in November, in which case they could amend the law.

2 thoughts on “Mr Dooley, right again (crosspost from Crooked Timber)

  1. My speculation is that the two conservative justices thought that if they tried too hard to split hairs on the law as it stood, they would own it; so, by sticking to a narrow reading of it, they essentially said it is in the hands of the legislators and then they’ll be the ones who own it. Legislators come and go, but supreme court judges, they linger.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s