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A MORALLY EMPTY JURISPRUDENCE- Hadley Arkes on #Bostock #SCOTUS the lead essay today at @firstthingsmag
A thread 1/x
firstthings.com/web-exclusives…
A thread 1/x
firstthings.com/web-exclusives…
In the aftermath of the wreckage, as we start assembling the pieces, we discover that we have now Originalists who defend the rights to abortion, same-sex marriage, and transgenderism, while others have long resisted these moral novelties. 2/x
But if Originalism is divided on questions of this kind, is it indecorous to pronounce the plain truth?: That Originalism indeed has nothing to say on matters of real consequence. It is a morally empty jurisprudence. 3/x
Prediction: The #SCOTUS ruling in #Bostock will become the central case in law school classes teaching the meaning of "but-for" causation. The entire decision comes down to applying but-for causation analysis! /1
'In the language of law, this means that Title VII’s “because of ” test incorporates the “‘simple’” and “traditional” standard of but-for causation. Nassar, 570 U. S., at 346, 360. That form of causation is established whenever a particular outcome...' /1
'...would not have happened “but for” the purported cause. See Gross, 557 U. S., at 176. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.
This can be a sweeping standard. ...' /2
This can be a sweeping standard. ...' /2
1/ ICYMI, I've written and co-written a couple of things I hope some readers will find interesting about central questions in each of the Title VII cases being argued in the #SCOTUS today.
#TitleVII #LGBTQ #stephens #zarda #bostock @SCOTUSblog #appellatetwitter
#TitleVII #LGBTQ #stephens #zarda #bostock @SCOTUSblog #appellatetwitter
2/ First, in this blogpost I address the argument that T7 doesn't prohibit an employer from adhering to a policy or practice of disfavoring gay men and lesbians alike, e.g., a "heterosexuals only need apply" policy.
(cont.)
balkin.blogspot.com/2019/09/though…...
(cont.)
balkin.blogspot.com/2019/09/though…...
3/ I explain that that doesn't describe the employers in the two cases the Court is hearing today--nor virtually any other employers one finds in T7 cases--but that, in any event, the Court's doctrines involving other forms of discrimination ...
