Category Archives: Courts

A Court Gets One Right

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In a sexual orientation case involving an adjunct professor who claimed she was denied “full time employment and promotions based on sexual orientation,” the 7th Circuit ruled unanimously that her employer can, indeed, do exactly that.  In particular, Title VII, under which the case was brought, does not apply to sexual discrimination in the workplace.

The reason the Court got this one right has little to do with discrimination—and everything to do with it—rather, it’s centered on what the law actually says, and what the judges said about what the law actually says.

…a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act. For although federal law now guarantees anyone the right to marry an ‐ other person of the same gender, Title VII, to the extent it does not reach sexual orientation discrimination, also allows employers to fire that employee for doing so.  …  Many citizens would be surprised to learn that under federal law any private employer can summon an employee into his office and state, “You are a hard‐working employee and have added much value to my company, but I am firing you because you are gay.” And the employee would have no recourse whatsoever—unless she happens to live in a state or locality with an anti‐discrimination statute that includes sexual orientation.

Because the law, Title VII as it’s written, doesn’t address that question.

There’s more [emphasis added]:

…the distinction between gender nonconformity claims and sexual orientation claims has created an odd state of affairs in the law in which Title VII protects gay, lesbian, and bisexual people, but frequently only to the extent that those plaintiffs meet society’s stereotypical norms about how gay men or lesbian women look or act…. By contrast, lesbian, gay or bisexual people who otherwise conform to gender stereotyped norms in dress and mannerisms mostly lose their claims for sex discrimination under Title VII, although why this should be true is not entirely clear.

Yet, this [emphasis added]:

[T]he paradox is not our concern. Our task is to interpret Title VII as drafted by Congress, and as we concluded in Ulane, Title VII prohibits discrimination only on the basis of gender.

Regardless of what we might think of the particular ruling—concerning a woman who was denied advancement on the basis of her sexual orientation (assuming, arguendo, that her claim was accurate)—or of other rulings involving actual firings over sexual orientation, this court got this ruling right.  The court is right because it applied the law as it was written, and not as it might have preferred it to have been written or as a government agency (EEOC had sided with the professor) wanted it to have been written.

The court also was right because it didn’t stop there.  The court went on to point out that while the law in question, as it was written, conflicted with other laws—one driving the Supreme Court’s ruling on gay marriages, for instance—the court was powerless to resolve the conflict.  Such a resolution is a political decision, not a judicial one; it’s for the people and their elected representatives to alter the law(s) in directions they see fit; no court can do that.

The court’s ruling can be read here.

A Free Speech Ruling

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The Federal trial judge got this one right, even though the Arkansas law had been on the books for 35 years.  The question concerned whether the State could restrict political speech by robocall with the mechanism of banning political robocalls.  The same statute did not ban other political calls, only robocalls, and the judge called them on that logical conflict.

The statute is underinclusive. Banning calls made through an automated telephone system in connection with a political campaign cannot be justified by saying that the ban is needed to residential privacy and public safety when no limit is placed on other types of political calls that also may intrude on residential privacy or seize telephone lines.

There’s a larger question here, too, though.  Once we begin limiting political speech, where does it stop?  What’s the limiting principle?  What naturally limits the thing, without relying on government forbearance?  One such limit mentioned in the ruling concerns signs containing political speech.  The signs cannot be banned, but their placement can be restricted based on safety concerns (for instance, visually blocking views of crossing traffic at intersections).  Robocalls, irritating as they are, don’t present themselves as usefully limitable, given the importance of free political speech and (incumbent) government attempts to restrict it, other than an Arkansas averred

prevent[ion of] the seizure of phone lines, which could interfere with emergency calls being placed or received.

However, as the judge noted,

The Attorney General fails to explain why automated calls other than commercial calls and those made in connection with political campaigns—for example, calls encouraging individuals to contact a member of Congress regarding a bill or to attend a townhall meeting regarding a public issue—using automated dialing systems do not trample upon the state’s interests in residential privacy and public safety.

The State’s safety claim doesn’t hold water.

And so, again I ask, when it comes to government limiting speech, particularly political speech, where does it stop?  What’s the limiting principle?  Safety certainly can be one such limit, but Arkansas’ law doesn’t—didn’t—apply it.

The judge’s opinion can be seen here.

Government’s Market Interference

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I wrote about this matter just a bit ago.  Now DoJ has gone ahead and filed its lawsuits seeking to block the mergers between Anthem Inc and Cigna Corp and between Aetna Inc and Humana Inc.  Attorney General Loretta Lynch’s rationale for this is this:

If these mergers were to take place, the competition among these insurers that has pushed them to provide lower premiums, higher quality care and better benefits would be eliminated[.]

And

They would leave much of the multi-trillion dollar health insurance industry in the hands of three mammoth insurance companies, and restricting companies, and restricting competition in key markets[.]

The one is mere speculation, and the other is prior restraint.  It’s certainly true that the mergers would create very large companies and leave fewer of them in the market.  But to say that this must reduce competition is just a guessing game, especially since Lynch declined to say—as her predecessors have declined to say, and as economists cannot say—what the minimum number of enterprises must be in any industry for there to be competition.  Indeed, absent collusion, which is illegal, two companies are driven to compete with each other by the economic forces extant in a free market.

Never mind, either, that as Lynch knows full well, that what’s illegal in America, what’s illegal under our antitrust laws—and all that’s necessary to be illegal—is abuse of monopoly power, not the existence of it.  As with the rest of our laws in a free country, these companies must actually commit the misbehavior before they can be sanctioned for it.

On the other hand, Government does allow protected monopolies—Ma Bell before its court-ordered breakup is one example.  A protected monopoly is a monopoly that is explicitly protected by Government: the monopoly is allowed to exist, and it is overtly protected from competition, in return for which the monopoly agrees to be heavily regulated by Government, including the prices it’ll be allowed to charge and the services it’ll be allowed to provide.  Indeed, protected monopolies are textbook examples of regulatory capture—only two-sided: the monopoly and the regulators have captured each other.

Lynch’s action, though, is an abuse of our antitrust laws; it’s nothing more than the Democrats’ campaign of lawfare.  Given the nature of Obamacare, though, maybe this protected monopoly/regulatory mutual capture is this administration’s final goal for health insurance companies.  That would be both a further effort to nationalize our private companies and an example of this administration’s view that it can control the capture.

This sort of behavior, too, emphasizes that the coming election will have consequences, not only for the White House, Congress, and the Supreme Court, it’ll have consequences for the nation’s Department of Justice and the other Executive Branch Cabinets and Agencies (and for our lower courts).

All of this, in the end, is motivated in part by individual Progressive-Democrats’ grasping for personal gain.

It is, though, even more strongly motivated by Progressive-Democrats’ collective contempt for their Lessers, us poor, dumb, plebeian Americans.

[T]he average American individual is morally and intellectually inadequate to serious and consistent conception of his responsibilities as a democrat.

Another Judicial Misbehavior

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The Fifth Circuit, in a 9-6 ruling, has said that Texas’ Voter ID law violates the Federal Voting Rights Act and returned it to the trial court to…fix…it.

[The appellate court] instructed a lower court to come up with an “interim remedy” before the November election.

Therein lies a major part of the problem.  Regardless of what one might think of the particular law, any alteration to it is a political matter, to be done by the people and their elected representatives.  The courts have no authority whatsoever to write law or to rewrite an extant one; indeed, our Constitution explicitly bars the courts from such things.

There’s more.  Writing for the majority, Judge Catharina Haynes wrote this, having already acknowledged that there is no direct evidence of discriminatory intent.

In this day and age we rarely have legislators announcing an intent to discriminate based upon race, whether in public speeches or private correspondence. To require direct evidence of intent would essentially give legislatures free reign to racially discriminate so long as they do not overtly state discrimination as their purpose and so long as they proffer a seemingly neutral reason for their actions.  This approach would ignore the reality that neutral reasons can and do mask racial intent….

In other words, whenever legislators disagree with judges, judges must proceed from a presumption of dishonesty on the part of the legislators.  Direct evidence be damned.

[C]ourts may consider both circumstantial and direct evidence of intent as may be available.

Because circumstantial evidence, especially in the absence of direct evidence, can be interpreted in any way convenient to the judge’s predisposition—or to a litigant’s narrative.  That’s why circumstantial evidence is so sketchy in the first place.

The dissent, written by Judge Edith Jones, makes the majority’s shameful behavior plain.

No one doubts our unwavering duty to enforce antidiscrimination law. But in this media-driven and hyperbolic era, the discharge of that duty requires the courage to distinguish between invidious motivation and shadows. The ill-conceived, misguided, and unsupported majority opinion shuns discernment. Because of definitive Supreme Court authority, no comparable federal court precedent in over forty years has found a state legislative act motivated by purposeful racial discrimination.

All of that represents a very serious bit of judicial misbehavior, and it puts a premium on getting this 2016 election right.  A Progressive-Democrat in the White House, together with a Democrat-owned [sic] Senate, will have damaging effects far beyond the Supreme Court damage I’ve been on about in other articles: they’ll have their impact on lower courts, too, and throughout our judicial system.

The ruling can be seen here.

Leave it to Obama

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…and his fellow Progressives, including his proud acolyte, Democratic Party Presidential candidate Hillary Clinton.

The Obama administration is working on a series of agreements with foreign governments that would allow them for the first time to serve US technology companies with warrants for email searches and wiretaps—a move that is already stirring debates over privacy, security, crime and terrorism.

And

Under the proposed agreements described by Mr [Brad, Deputy Assistant Attorney General] Wiegmann, foreign investigators would be able to serve a warrant directly on a U.S. firm to see a suspect’s stored emails or intercept their messages in real time….

Because American sovereignty inside our own nation just doesn’t matter.

Elections have consequences.