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Bostock and the majoritarian difficulty


As I mentioned yesterday, I had a lengthy thread about the brief oasis in the Mojave Desert in August that is the Roberts Court, but a few more comments:

  • It’s a relief to finally (with the half-exception of Lawrence) to have a landmark LGBTQ rights opinion from the Supreme Court that isn’t a shoddy mess. Gorsuch’s opinion is very clear and well-constructed, and just makes Alito’s sophomoric redundancies look all the worse. It’s so much better than one of Kennedy’s “the history of romantic love is as old as the history of history itself [40 pages later] anyway this statute is unconstitutional because, uh, I dunno, dignity?” jobs. (And obviously Kennedy’s twerpish refusal to provide meaningful guidance to lower courts is even worse in constitutional cases than it would be in a statutory case like this.)
  • You can basically skip everything in Alito’s interminable opinion until Section IV, when he starts the BUT MUH LOCKER ROOMS jeremiads that reveal his actual reasons for dissenting. This became really evident in the census case, but Alito used to be a lot more careful than this; he was a master in couching highly partisan opinions in technical language. But as with so many septuagenarians who presumably watch hours of Fox News a day, you can only maintain the facade for so long.
  • As Roy observes, the attempts by reactionaries to construct parades of horribles from this decision are just sad. These elaborate scenarios where employers might not be able to fire people for violating arbitrary dress codes are right up there with Antonin Scalia’s legendary “but if you can’t make adults having consensual sex illegal you can’t ban masturbation either yes it is definitely the libs being checkmated here” self-own. It makes the fake terror over federal broccoli mandates look serious by comparison.
  • As Michelle Goldberg points out, one reason cultural reactionaries lost despite firm Federalist Society control of the Court is that they’re getting slaughtered in the court of public opinion, leaving them vulnerable to individual judges being indifferent enough about the issue that they’d rather show that their pet legal theories are too fair and balanced. Attempts to claim that the opinion are “counter-majoritarian” ring hollow given that 1)the majority’s position is overwhelmingly popular and 2)the status quo ante was protected by the counter-majoritarian mechanisms that overrepresent white rural conservatives in federal elections.
  • The “indifference on the issue” part is important, though. Claims that social conservatives won’t get anything out of the Roberts Court are, to put it mildly, premature.

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