Kopf: A Short Take on Left-Handed Monkey Wrenches

My father once sent me to a neighbor to borrow a left-handed monkey wrench. I was five or so, and believed my father needed this strange device. The neighbor, understanding the ruse, gently told me that all monkey wrenches worked whether the user employed his right or left hand. I returned and promptly told my Dad. He smiled and thanked me for my effort. He added that perhaps next time it might be good to question a request from others. Did a request make sense? I can still feel the warm blush of shame that covered my face.

During her 2010 Supreme Court confirmation hearings, Elena Kagan, Barack Obama’s solicitor general and former Dean of the Harvard Law School, created a stir in legal circles by stating, “We are all originalists.” Of course, she was correct but not as commonly understood. She was being honest, but not in the way the true believers—whether liberal or conservative—feared or wished.

Justice Scalia, a Catholic (and that is important and not bigoted), believed in dogma. He needed dogma like fish need water. Dogma, so he fervently believed, constrained him. Dogma, in his case originalism in all its myriad and contradictory permutations, allowed him to believe that he was not an independent actor. He was, according to his delusion, a historian, albeit, as it turns out, a poor one. But he was unbelievably smart. He was also the best propagandist of modern times, although he honestly believed what he wrote.

This brings me to Justice Gorsuch and his opinion regarding the meaning of “sex” and the use of a form of originalism (textualism). Justice Neil Gorsuch’s opinion in Bostock v. Clayton County redefines (or perhaps “defines”) the word “sex” in Title VII of the Civil Rights Act of 1964 to include “sexual orientation” and “gender identity.” That is rather odd, since no one at the time the statute was enacted, as Gorsuch freely admits, thought the word “sex” pertained to conduct then considered aberrant and sometimes criminal.

Justice Gorsuch asserted that he was on strong textualist (originalist) grounds. He said:

The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.

(Emphasis by Kopf)

But the three dissenters (Thomas, Alito and Kavanaugh) thought quite differently and relied upon textualist grounds as well. It is fair to say they were genuinely stunned by Gorsuch turning the tables on them using their preferred method.

Here, in brief, is what Oyez accurately describes their views:

Justice Samuel Alito authored a dissenting opinion, in which Justice Clarence Thomas joined, criticizing the majority for attempting to “pass off its decision as the inevitable product of the textualist school of statutory interpretation,” but actually revising Title VII to “better reflect the current values of society.[“] Justice Brett Kavanaugh authored a dissenting opinion arguing that, as written, Title VII does not prohibit discrimination on the basis of sexual orientation (or by extension, transgender status).

What do I think about the substance of the decision? I don’t care.

But I do care about the seismic crack in originalism that Bostock reveals in stark and naked terms. Indeed, the Bostock case is a wonderful illustration of my advice to conservatives who are Scalia acolytes: To Judicial Conservatives: Originalism (textualism, plain meaning, etc.,) Is a Tool and Not a Principle—Don’t Cry, Grow Up!

Or put more succinctly, monkey wrenches can be used by either hand.

Richard G. Kopf
Senior United States District Judge (Nebraska)

9 thoughts on “Kopf: A Short Take on Left-Handed Monkey Wrenches

  1. Denverite

    Thank you.
    It seems some who should know better have forgotten that judgment (which tool to use), and skill (how to use it properly) are always required.
    “As easy it was to tell black from white.
    It was all that easy to tell wrong from right.
    And our choices they was few so the thought never hit.
    That the one road we traveled would ever shatter and split.”

    1. Richard Kopf

      Hal,

      Perhaps, in the deep dark recesses of Justice Scalia’s fertile mind he harbored a secret. If ever disclosed, true believers might describe that secret as heretical.

      Was he closet Deadhead? If so, he probably flagellated himself for that latent perversion while listening in awe and shamefully happy that he could, for a moment, avoid listening to a latin Gregorian chant.

      Thanks for the education, truly. All the best.

      RGK

  2. David Meyer-Lindenberg

    Judge,

    My dad once gave me a copy of Scalia and Garner’s Reading Law, which I have here by my bedside. I thought, and think, that the introduction was just about the most eloquent defense of originalism as a principle I’ve seen. Accordingly, your post is heresy, which is bad. It also makes me uncomfortable because I can’t think of a good rebuttal, and that too is bad. Most importantly, however, your post makes originalism sexy (a “stark and naked” “seismic crack”? Sign me up), and that is doubleplusgood. On the whole, therefore, I’m prepared to overlook the nagging doubts it raises about what I believe and give it a pass.

    All the best,
    Dave

    1. Richard Kopf

      David,

      If I have caused a brilliant young man like you to pause then I am humbled. By the way, your Dad’s gift was a particularly thoughtful one.

      Scalia and Garner wrote a wonderful book listing rules that could be mixed and matched to suit the inclination of the of the lawyer or judge. For a much deeper and penetrating criticism than mine, Richard Posner’s* The Incoherence of Antonin Scalia, the New Republic (August 23, 2012) should lay by your bed too. You have no doubt read it, so I lecture to the celestial choir I suppose.

      For my money, Holmes had it about right despite his many contradictions.** Law is a product of experience not logic (principle).*** Yet we do the best we can with the poorly understood tools we have been given in the super short span of time we have in this (and probably our only) life.

      All the best.

      Rich

      *Posner might be a bit of a monster, but, nevertheless, a brilliant one.

      **Noah Feldman’s book review of Oliver Wendell Holmes, A Life in War, Law, and Ideas, by Stephen Budiansky, New York Times, does a good job of laying Holmes’ flesh bare.

      *** Which brings to mind Stephen Hawking. He was originally a believer in the Theory of Everything, but ultimately concluded that one was not obtainable. “Some people will be very disappointed if there is not an ultimate theory that can be formulated as a finite number of principles. I used to belong to that camp, but I have changed my mind.”

      There is hope for you dear friend.

  3. Keith Lynch

    Isn’t originalism or plain meaning long dead? Since the 1930s
    the commerce clause has been reinterpreted as meaning the federal
    government can regulate absolutely anything that might have the
    slightest effect on interstate commerce. Or on production. The
    speedy trial clause is simply ignored. Most defendants don’t even
    get trials at all. The US has been in plenty of wars since 1946,
    but Congress hasn’t declared any of them. Most federal laws aren’t
    passed by Congress, but by any of hundreds of regulatory agencies or
    directly by the president. There’s been plenty of voter suppression,
    e.g. states demanding IDs while making them harder to get, but nobody
    but me seems to have noticed the 14th amendment clause that says when
    a state disenfranchises an adult citizen for any reason but conviction
    of a crime, their representation in Congress and in the Electoral
    College will be reduced in proportion. The contract clause is dead;
    countless federal laws abolish or alter contracts at will. The
    government is supposed to promote the *general* welfare, not special
    interests. But hundreds of billions of federal dollars are spent on
    interstate highways that are only open to licensed motorists, not to
    pedestrians or cyclists. I could go on and on.

Comments are closed.