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Comment by jawns | Hacker News Reader

> Titles like these make people think that the Supreme Court is “endorsing” or “rejecting” gay and transgender worker protections.

As one of the dissents pointed out, when the liberal wing of the Supreme Court just happens (time and again) to interpret a statute in a way that advances liberal ideological objectives, and the conservative wing just happens (time and again) to interpret a statute in a way that advances conservative ideological objectives, it is not unreasonable for the general public to assume that the Court is indeed endorsing or rejecting based on ideology, rather than interpreting the law.

Here's an interesting analysis of how and when ideology comes into play:

https://insight.kellogg.northwestern.edu/article/supreme-cou...

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Your argument is invalidated by the fact that apparently "conservative" judges here voted to SUPPORT LGBT rights in this case.

The notion that the Supreme Court is an ideological legislative body is propaganda meant to subvert the integrity of the court.

Some of the most liberally-hated conservative judges, just voted FOR LGBT rights here, because it's they believe it's what the law implies - not because it's what they believe is ethical.

In fact, none of the dissenting opinions said that LGBT people don't deserve the same protections - they simply believed that it's congress's job to make those changes - and that's a hard point to argue honestly.

Sowing partisanship by demonizing the people you disagree with, whilst also undermining the institutions our government is based on is... a really shitty thing to do.

> apparently "conservative"

I think you answer your own objection right there. Conservatives don't conserve anything, it's liberalism with a speed limit. The United States doesn't have any party that is interested in conserving anything cultural or legal, anywhere. Which is great for Democrats (like myself).

(There are many conservative voters in both parties, of course, and they would absolutely disagree with this latest ruling. But that's not the same as those voters having a party—there are literally no "conservative" elites in position of power in the Democrat or Republican parties, or anywhere else for that matter. We're effectively at year zero.)

> not because it's what they believe

No, they believe it. The courts are by far the fastest and best means of enacting liberal reforms today. Voters cannot be relied upon to enact these kinds of changes themselves (quite the opposite, in fact—they consistently vote against them). Civil rights legal principles always trump any other law or principle, which is why it's the sole justification for all of these landmark cultural rulings. The Anglo-Saxon legal tradition is as out-of-date with culture today as a statue of George Washington or Thomas Jefferson.

After the courts, we have to rely primarily on finance (private corporations) to push change; Goldman Sachs and assorted hedge funds are incredibly powerful allies in the long march towards progress.

> Which is great for Democrats (like myself)

I find it rather grimly ironic that a political party that calls itself "Democratic" endorses explicitly non democratic means for making reforms, on the grounds that, in your own words, "Voters cannot be relied upon to enact these kinds of changes themselves".

Political labels are almost meaningless; always judge politics by actions, not words. The Democrat Party today is as far from Andrew Jackson (it's first President) than North Korea (the Democratic People's Republic of Korea) is from being a democracy, or a republic.

You called yourself a "Democrat". Even if you want to disclaim association with the political party that calls itself that, you still have the same problem I attributed to them.

Judges are nominated and confirmed by elected officials, which are determined by the voters. Which part of that is "undemocratic"?

> Which part of that is "undemocratic"?

The part where judges make political decisions that are supposed to be made by voters and their elected representatives. The fact that some busybody believes that voters "can't be relied on" to enact particular policies that the busybody favors does not justify getting those policies enacted by judges instead. Judges are not supposed to enact policies. They are supposed to say what the law is, not what someone believes it ought to be.

> Judges are not supposed to enact policies. They are supposed to say what the law is, not what someone believes it ought to be.

I think that was true at the country's founding, but is no longer true today. The entire purpose of Civil Rights legislation was to enable the courts to "enact policies", which they have done continuously since. They are literally doing what Congress asked them to do.

If you don't like Civil Rights legislation, fine. But don't blame the courts for using it as the basis to do what Congress has clearly empowered them to do.

> The entire purpose of Civil Rights legislation was to enable the courts to "enact policies"

Congress cannot change the structure of the government by passing a law. The Constitution makes enacting policies the job of Congress (and the President, for either signing or vetoing bills passed by Congress), not the Supreme Court. If we want the Supreme Court to be able to enact policies, we would need to amend the Constitution.

As I said in another comment upthread, I think you have a highly idiosyncratic (and wrong) view of how law in the US works.

Would you have preferred that judges didn’t rule the way they did in the case of Brown vs Board of Education?

The “busy bodies” are the people who want to deny employment to people just because who they share a bed with.

> Would you have preferred that judges didn’t rule the way they did in the case of Brown vs Board of Education?

As a matter of law I would have preferred that political decisions about public schools were made by legislatures, not judges, as they are supposed to be. The idea that the purpose of government is to get our favored policies in place, by hook or by crook, is going to be the death of our republic sooner or later. The government is supposed to uphold the rule of law, and the law of the land in the US, the Constitution, does not give judges the power to make political decisions.

As a matter of policy, I would have preferred that the whole public school system in the US have either not been developed at all, or developed along very different lines. The people who put the US public school system in place were quite explicit that their purpose was to indoctrinate children. I think the government has no business indoctrinating children. But that policy question is way past any hope of repair.

As a matter of law I would have preferred that political decisions about public schools were made by legislatures, not judges, as they are supposed to be.

I wonder if you would have had the same preference if you had had to send your kids to separate schools, drink from separate water fountains, give up your seat on a bus for someone who was the right color or be forbidden to marry the person you love because they were a different color?

Would you also be in favor of a national religion if the majority passed such a law?

A republic that legalizes discrimination deserves to die.

> I wonder if you would have had the same preference if you had had to send your kids to separate schools, drink from separate water fountains, give up your seat on a bus for someone who was the right color or be forbidden to marry the person you love because they were a different color?

Regarding having to send kids to separate schools, I've already given my opinion on the US public school system in general. Given how messed up I think that whole system is, having to send kids to segregated schools instead of integrated ones would rank pretty low on my list of things to complain about. I'd be far more worried about how the school was trying to indoctrinate kids than what the demographics of the student body were.

I can see the obvious equal protection argument for requiring public schools not to be segregated, which of course was basically the argument the Court used when it said "separate is inherently unequal". (Similar arguments could of course be made, and were made, for the other cases you describe.) However, if we are going to talk about equal protection, I would think having equal quality of schools available to all would be the chief requirement to impose on the government if the government is going to provide public schools at all. And even if we grant that having the demographics of the student body be representative of the community is one aspect of school quality, it certainly is not the only one or even the primary one; surely what the students are actually being taught in the classroom should count, and count for more. If all the inner city integrated schools are bad and all the suburban integrated schools are good, that's not equal protection even if the demographics of the student bodies in both cases are the same.

Once we get into considerations like that, it should be obvious that we are talking about political policy decisions that have to be made legislatively, since they involve public funds, and are fraught with difficulty even then. Nobody knows how to ensure good quality schools everywhere, or even what "good quality" really amounts to or how to judge it. Having courts try to dictate policy in this area is not likely to be helpful. And in fact, the Supreme Court in Missouri v. Jenkins explicitly ruled that courts cannot dictate policy in this area; Brown vs. Board of Education only outlaws de jure segregation, not de facto inequalities in school funding and quality that impact different races differently. In other words, the only thing the Court found itself able to enforce was the thing that, judging by how our public schools have fared since Brown was decided, has by far the least impact on the actual quality of education that public school students receive.

This is what happens when courts try to make policy: you get a symbolic victory without the substance. I think most people, if they thought about it, would prefer the substance; but the only way to get that in a democracy is by doing the hard work of changing how citizens are willing to vote.

Given how messed up I think that whole system is, having to send kids to segregated schools instead of integrated ones would rank pretty low on my list of things to complain about. I'd be far more worried about how the school was trying to indoctrinate kids than what the demographics of the student body were.

You really don’t know much about how bad that whole “separate but equal” thing worked out in practice? I bet a years salary that your parents never told you how bad Jim Crow laws were for minorities. Nor did they have to grow up under them.

It’s easy to argue theory when you aren’t personally effected. No matter how much money I made, I wouldn’t have been allowed to buy a house in the area that I now live because of racial covenants 50 years ago. I wouldn’t have been able to move into the “good neighborhoods” where I could send my son to the “good schools”.

Sorry, I’m not fond with waiting for the “democratic process” and beg racists (speaking hypothetically if the court hadn’t overturned the laws) to vote to outlaw Jim Crow laws.

> You really don’t know much about how bad that whole “separate but equal” thing worked out in practice?

I never said "separate but equal" wasn't bad. Remember I said that I think the whole US public school system should either not have existed at all, or should have developed along very different lines.

> I’m not fond with waiting for the “democratic process”

Then you don't want to live in a democracy. Democracy means that you change the law using the democratic process, and that all the people, even the ones whose views you abhor, have a voice in that process.

If people who take your view would admit straight up that they don't want democracy and want to abolish our democratic form of government and replace it with something that better suits them, that would be one thing. But, as I pointed out upthread, the very same people call themselves "Democrats" and say democracy is wonderful and argue that everything they are doing is perfectly consistent with the form of government we are supposed to have according to our Constitution and laws. What they mean is that democracy is wonderful as long as it does what they want, and the Constitution and laws can be set aside whenever necessary in order to achieve their policy objectives. That's not democracy, and it's not the rule of law. It's just arbitrary exercise of power according to personal opinion.

So I should want to live in this great theoretical democracy where the will of the majority means the government can legally discriminate against me? Or as late as 2013 , there were cases where gay people were being arrested for “sodomy” because they were having sex in their own homes? (https://slate.com/human-interest/2013/08/gay-people-are-stil...) just because those are the laws passed by the “democratic process”?

I have a strange feeling you wouldn’t feel the same way if the Democratic process infringed on your liberties.

Do you agree that I shouldn’t have been able to buy a house in a certain neighborhood because the “Democratic process” allowed racial covenants? Or that my son shouldn’t have been able to go to the school that he was zone to and instead wait on people to decide that it was okay with them even though I was paying taxes too?

> So I should want to live in this great theoretical democracy where the will of the majority means the government can legally discriminate against me?

What kind of society you want to live in is up to you. Just don't pretend that you want to live in the kind of society that our Constitution and laws describe, if you actually don't.

> I have a strange feeling you wouldn’t feel the same way if the Democratic process infringed on your liberties.

According to our Constitution and laws, it can't. The fact that it often does is a sign that our so-called "Democratic process" is actually not respecting our Constitution and laws, but is instead based on arbitrary exercises of power. Adding more arbitrary exercises of power to the mix does not help fix that problem.

> Do you agree that I shouldn’t have been able to buy a house in a certain neighborhood because the “Democratic process” allowed racial covenants?

Do you think such covenants are allowed by the Constitution and the Bill of Rights?

> Or that my son shouldn’t have been able to go to the school that he was zone to and instead wait on people to decide that it was okay with them even though I was paying taxes too?

Do you think that policy is consistent with the Constitution and the Bill of Rights?

Well, in both cases the “democratic elected representatives” thought so until “activist judges” got involved.

I didn't ask what they thought. I asked what you think.

If your answer is that you just accept whatever the "activist judges" think as a corrective to what the "democratically elected representatives" think, then you are just as much at the mercy of what the "activist judges" believe as a black person in the Jim Crow South was at the mercy of what the "democratically elected representatives" believed. The "activist judges" did something you agree with this time, but they could just as well do something you disagree with, or that prevents you from doing something you want to do or takes away something you think you have a right to, next time.

I trust “activist judges” who aren’t subject to the whims and votes of “religious people” who believe that a book written over two millennium ago means that if they allow homosexual acts and “race mixing” that they will damn the country to hell.

The term "Democrat Party" (and, more generally, "Democrat" as an adjective) is both a shibboleth signaling opposing tribal membership, and an epithet signaling contempt for the Democratic Party — the actual name of the organization. It's adult name-calling. The usage is widely understood to be an intentional discourtesy.

Maybe it’s because the majority should never have the right to impinge on basic liberties because of religious beliefs — see also, laws against “sodomy” (non heterosexual sex) and laws against “miscegenation” (interracial marriage).

What’s a “basic liberty?” Who gets to decide? What happens if the majority literally believes that God will punish their society if it condones “sinful” behavior? You can say that religious beliefs shouldn’t be the basis of law, but who put you in charge? And what happens when people’s “basic liberties” conflict? Isn’t freedom of association a “basic liberty?” Is there somewhere in the constitution that says it doesn’t apply to employers?

I view the legal process like arguing with your spouse. Every win has a cost. Every victory for individual self determination achieved through litigation chips away at the right of collective self determination, and that’s not cost free.

So we can argue theory all day long. Do you think a “democracy” should have the right to imprison someone who marries someone of a different race or if two consenting adults decide to have sex?

In this case at hand. Do you think someone should end up dying because they can’t get healthcare because of prejudice against the trans community?

> I think you answer your own objection right there. Conservatives don't conserve anything, it's liberalism with a speed limit. The United States doesn't have any party that is interested in conserving anything cultural or legal, anywhere. Which is great for Democrats (like myself).

It’s a rare moment when people can agree on what’s happening while disagreeing on whether it’s good or bad. This is exactly the criticism conservatives have about the Court.

We have had a “conservative” majority Supreme Court for almost 50 years, and on social issues we have gone at more or less the same pace as Western Europe. (I would like to think that conservatives had a hand in filtering out a bunch of dead ends they liberals otherwise would have led us down.) For example, same-sex marriage:

> In 2001, the Netherlands[b] became the first country to establish same-sex marriage by law.[124] Since then same-sex marriage has also been established by law in Belgium (2003), Spain (2005), Canada (2005), South Africa (2006), Norway (2009), Sweden (2009), Portugal (2010), Iceland (2010), Argentina (2010), Denmark (2012), Brazil (2013), France (2013), Uruguay (2013), New Zealand[c] (2013), Luxembourg (2015), the United States[e] (2015), Ireland (2015), Colombia (2016), Finland (2017), Malta (2017), Germany (2017), Australia (2017), Austria (2019), Taiwan (2019), Ecuador (2019), the United Kingdom[d] (2020), and Costa Rica (2020). In Mexico, same-sex marriage is performed in several states and recognized in all thirty-one states.

7 of 9 justices voted with their respective liberal/conservative blocs and you say my point (that the public perceives the justices as having ideological biases) is invalidated?

Invalidated by the fact that 2 of 9 justices broke ranks in this one particular case? The fact that there are so-called liberal/conservative blocs away from which the justices occasionally break means that yes, there is a common perception that the justices allow their ideological biases to influence their opinions.

Ah, but Gorsuch is not liberal - at least, he was installed by the Republicans, and looked up to Scalia a lot, and was proposed by the Federalist Society.

That's what makes this decision such a welcome surprise to me. Maybe textualism isn't a lie.

That's quite true, although not totally invalidating my point, because the terms "liberal" and "conservative" as they apply to the Supreme Court tend to be too one-dimensional. Gorsuch and Roberts are definitely conservatives in some respects, but when it comes to social issues, they're more moderate/libertarian, in the vein of Anthony Kennedy.

In fact, if you look at all of Roberts' opinions on social issues, outside of maybe abortion stuff, it's a little surprising that Roberts did not join in with Obergefell. Given that he _did_ dissent from Obergefell, it's also a little surprising he didn't dissent in Bostock. His rationale in Obergefell was that regardless of what he would like the law to say, he did not find that it said what the majority wanted it to say. That's essentially what Kavanaugh said in his dissent today. And to the extent that both cases could be characterized as determining that a right has been hidden in plain sight this whole time, I'm not really sure why Roberts went one way with Obergefell and the other way with Bostock.

> when it comes to social issues

In a society, those are the only issues that actually matter.

> In a society, those are the only issues that actually matter.

Only if your definition of "society" ignores individuals and says that only society itself matters. Lots of individuals (including me) strongly disagree with that.

Literally no one's definition of "society" ignores individuals. Not sure what you're on about.

> Literally no one's definition of "society" ignores individuals.

Yours appears to since you say only social issues matter. You are ignoring that individuals have issues, and those issues matter too, because society has to respect individual rights, and that includes the individual right to resolve individual issues without micromanagement based on some busybody's beliefs about "social issues".

> because society has to respect individual rights

That hasn't been true since the 1960s when the bulk of our Civil Rights legislation was passed. The prior legal regime already supported individual rights for all people; "Civil Rights" was about putting the health of society ahead of those individual rights. Actual 1st Amendment rights like "Freedom of Association" were severely curtailed by Civil Rights legislation; indeed, that was the entire point.

Now, I probably agree with you about respecting individual rights. I would have liked (as far as I can tell, having not lived through it) the pre-Civil Rights legal regime because I'm a White, straight male. The culture back then was designed to work well for someone like me (and according to all historical evidence, it did).

But that's no longer the culture in the US, and we're coming up on 60 years now since the rules were changed. I'm not sure what you want me to do about it, assuming I even could change things today (or would want to).

Respectfully, this is the hugest flaw with small c conservative thought, it's hyperfocused on the individual and ignores any larger social context or wellbeing to the detriment of a nation, state, etc

I think your "small c conservative" thought is actually more like libertarianism, but otherwise I agree.

(When I think of actual "small c conservatives", someone like G. K. Chesterton is what immediately comes to mind…)

I might have to revisit my perspective, thanks for this!

You can turn that around just as easily. As an Asian, I’m always a bit unsettled by the degree to which liberals are willing to absolutely set the social fabric on fire to accommodate individuals. Like, a school in small town Iowa where everyone is Christian can’t use their public institutions that they pay for to perform one of the most fundamental functions of human societies: socializing children in the community’s religion. I see why it’s that way through the view of western individualism, but I can’t say your average person in Bangladesh would see that as rooted in a consideration for the “larger social context.”

> the degree to which liberals are willing to absolutely set the social fabric on fire to accommodate individuals. Like, a school in small town Iowa where everyone is Christian can’t use their public institutions that they pay for to perform one of the most fundamental functions of human societies: socializing children in the community’s religion.

I don't think liberals are actually setting the social fabric on fire to enable individualism over, in the case of your example, socializing children in the community's religion. I think liberals simply want to socialize the children in their own ideology instead of that of their parents. That's one of the things compulsory public schooling is for, in the words of the very people who put that system in place.

> set the social fabric on fire

That's an interesting way of framing necessary change.

I'm not interested in diminishing the capacity of people to celebrate their beliefs, but yes indeed, we separate church and state because it's in the best interest of society in general. I guess that's very western of me to say, but I'm more than glad to defend it in the context of many past examples of religious institutions abusing public goods in order to discriminate.

> That hasn't been true since the 1960s when the bulk of our Civil Rights legislation was passed.

Civil Rights legislation does not override the Constitution or the Bill of Rights.

I think you have a very idiosyncratic (and wrong) view of how law in the US works.

> I think you have a very idiosyncratic (and wrong) view of how law in the US works.

And yet today, the Supreme Court literally did the thing you think it should not do. Doesn't that give you at least a moment's pause that maybe the law no longer operates the way you think it does in the US?

> the Supreme Court literally did the thing you think it should not do.

If you mean I think the Supreme Court enacted a policy, which I have said (in another subthread) should be done by Congress, not the Court, yes, that's true.

But the Court itself says it is not enacting policy. It claims to simply "say what the law is", based on the power granted to it by the Constitution plus a long history of prior Court decisions, starting with Marbury v. Madison (from which the phrase I just used is taken). I think the Court's claim that it is not enacting policy is wrong, but that's just my personal opinion. The law is that enacting policies is the job of Congress, not the Court, and the Court claims to be following this law and leaving legislation to Congress. Certainly the Court is not claiming that the Civil Rights law of 1964 overrides the Constitution, or gives the Court some sort of power to enact policies that is not granted by the Constitution. Nor is anyone else except you, so far as I can see.

sigh

To use a coding analogy, it's as if you're telling me what a piece of code does by reading the comments. I'm reading the actual code, and telling you that the comments next to it are out-of-date—they no longer describe the code. To prove that the code does what I say it does, I'm running it (c.f. today's Supreme Court decision) and showing you the results. Yet you are not convinced.

That the Supreme Court creates policy today that Congress cannot is obvious to everyone on both the left and right. The left is overjoyed at the increase in protections for disadvantaged people, the right dismayed that the left isn't using the "right" process to get those protections. The documentation (Constitution) says the Supreme Court shouldn't be making these policies…but when we run the code, like today, that's what happens. The code doesn't match the comments.

It would be great if the comments matched the code, but that's not reality today—and hasn't been for at least the last 70 years. Many (most?) people are okay with this apparent contradiction, so long as good as being done, but it appears to bother you (and most people on the right).

I 100% agree that in a perfect world, the Constitution should be updated if the courts are going to make these kinds of policies, but I also think that's extremely unlikely since Congress has zero interest in doing so, and Civil Rights legislation is so broad that there's no need anyway: the courts can just say, like they did today, that it's actually Congress who made this policy (even though everyone knows Congress did no such thing). Since apparently muttering the correct words is sufficient to satisfy people on the right, despite all evidence to the contrary, why change things?

> it's as if you're telling me what a piece of code does by reading the comments.

Hm, interesting analogy. I see your point, but I think I would put it a bit differently. See below.

> apparently muttering the correct words is sufficient to satisfy people on the right, why change things?

Where did I say I was satisfied? (Assuming for the sake of argument that I am "on the right", which I actually don't think is true, but that's an argument for another time.) I'm not satisfied. I think that achieving a short-term policy goal, even a good one, by means not allowed by the plain language of the Constitution is bad long-term policy. The fact that sophistry is used to make it appear that the means of achieving the short-term policy goal are in fact in accordance with the Constitution does not make the means actually correct.

In other words, in my view, what the Court has done here is not upholding the rule of law. Saying that "well, the law is whatever the Court says it is" does not make it true. If, as you say, everyone knows quite well that the Civil Rights Act of 1964 did not actually outlaw discrimination because of sexual orientation or transgender, then the Court saying that it actually did is not the rule of law. It's just an arbitrary exercise of power. Arbitrary exercises of power do not change the law. They just mean the government is operating outside the law.

To frame this using your coding analogy, we don't have comments getting out of sync with code, we have two different pieces of code getting out of sync with each other. The code the government is running that it labels "law" is not the same as the code that citizens are running that tells them what the law actually is and whether or not the government is actually upholding it. The code the citizens are running might be based on their reading of "comments" like the Constitution, but that just underscores the fact that those "comments" aren't really just comments--they have actual effects in the world, like giving citizens a basis for making their own judgments about what the law is that they are supposed to be following. If the government gets out of sync with that, that's a problem.

> To frame this using your coding analogy, we don't have comments getting out of sync with code, we have two different pieces of code getting out of sync with each other.

I get what you're saying and agree, actually. That said, it's pretty clear to me that whatever code that you're thinking of isn't running anywhere but in the minds of (mostly White) voters. It's almost completely absent from all forms of government except, perhaps, local governments in rural areas. Trump occasionally makes gestures in that direction but takes no action, as far as I can tell.

The people in power everywhere are running the piece of code that produced today's Supreme Court decision, and are overjoyed with the results.

A more interesting question is, why do we have two separate codes that are out of sync? And what should we do about it (if anything)? But that's too big of a topic for the HN comment section.

Thanks for the back and forth, I appreciate it. :)

> whatever code that you're thinking of isn't running anywhere but in the minds of (mostly White) voters

This might well be true; if it is, it's a sad commentary on our body politic that so many people have lost touch with what the rule of law is supposed to mean. Civilizations where that has happened in the past have not ended well.

> Thanks for the back and forth, I appreciate it. :)

Likewise! :-)

> Actual 1st Amendment rights like "Freedom of Association" were severely curtailed by Civil Rights legislation

The 1st Amendment does not protect some vague right to "freedom of association". It protects "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances". Which is exactly the right that the protesters of the 1960s whose actions helped to get the Civil Rights laws passed were exercising. To say that those same Civil Rights laws "severely curtailed" those same rights is ridiculous. They did no such thing.

> The 1st Amendment does not protect some vague right to "freedom of association".

Finally, we agree!

https://en.wikipedia.org/wiki/Freedom_of_association

That Wikipedia article actually references a Supreme Court decision that says the 1st Amendment does protect freedom of association because it is an essential part of freedom of speech. I haven't read the opinion in that case, though, so I don't know what "freedom of association" actually meant in the context of that case.

I personally would say the 9th and 10th Amendments are more to the point, since they talk about rights not specifically mentioned.

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