Long ago we all should have adequately digested – and appropriately defecated – certain irrational exuberance of the politically irresponsible:
And by now we all know of the death of Supreme Court Justice Antonin Scalia – and the expressed intent of treason-minded christianists in the Senate to rewrite the Constitution to remove the ability of duly-elected (African-American) presidents to fill Supreme Court vacancies during their final year in office.
Which all leads back to those ‘robust’ protections that any given trans person only has until the next judge hearing a discrimination claim says said trans person does not have them.
‘Robust’ protections that were created by judges and administrators, not legislators.
‘Robust’ protections that can be erased by judges and administrators, without legislators ever having to get their hands dirty.
Those ‘robust’ protections.
All of those ‘robust’ protections – real and (mostly) imagined – emanate from the four-justice Supreme Court plurality opinion in 1989’s Price Waterhouse v. Hopkins. The key line, from Justice William Brennan, is indeed a monumental nugget of logistic simplicity that should be unassailable:
We are not inclined to accept petitioner’s belated and unsubstantiated characterization of Dr. Fiske’s testimony as “gossamer evidence” (Brief for Petitioner 20) based only on “intuitive hunches” (id., at 44) and of her detection of sex stereotyping as “intuitively divined” (id., at 43). Nor are we disposed to adopt the dissent’s dismissive attitude toward Dr. Fiske’s field of study and toward her own professional integrity, see post, at 293-294, n. 5.
Indeed, we are tempted to say that Dr. Fiske’s expert testimony was merely icing on Hopkins’ cake. It takes no special training to discern sex stereotyping in a description of an aggressive female employee as requiring “a course at charm school.” Nor, turning to Thomas Beyer’s memorable advice to Hopkins, does it require expertise in psychology to know that, if an employee’s flawed “interpersonal skills” can be corrected by a soft-hued suit or a new shade of lipstick, perhaps it is the employee’s sex and not her interpersonal skills that has drawn the criticism.
But, again, only four justices out of a possible nine lined up behind that rationale.
And with the death of Antonin Scalia, the only justice left on the court who was there in 1989 is Anthony Kennedy – who has authored some good LGB-positive decisions (Romer v. Evans, Lawrence v. Texas) and whose 1988 confirmation to the court is the historical fact which lays bare the malignant hypocrisy of Mitch McConnell and the Senate La Cosa Republinostra but who also helped to give us Citizens United, Shelby County v. Holder and the George W. Bush administration.
There were concurrences in Price Waterhouse which add somewhat to its vitality, but there was a three-justice dissent.
A dissent authored by Anthony Kennedy.
And how did it begin?
Today the Court manipulates existing and complex rules for employment discrimination cases in a way certain to result in confusion.
Now, to be fair, the dissent was not focused on the specifics of the Brennan logic from which trans protections have had to be chiseled by other courts and by the EEOC because Gay, Inc. decided that the wants of the infinitesimal percentage of LGBs who desire a career in the military were more important than the needs of all LGBT people who at some point in their lives will seek employment in the civilian economy – that the wants of the few outweigh the needs of the many. But, nevertheless, this is how Kennedy’s dissent (cosigned not only by Scalia but also by Chief Justice Rehnquist – two others who are responsible for inflicting George W. Bush and his wars of choice on America) concluded:
The language of Title VII and our well-considered precedents require this plaintiff to establish that the decision to place her candidacy on hold was made “because of” sex. Here the District Court found that the “comments of the individual partners and the expert evidence of Dr. Fiske do not prove an intentional discriminatory motive or purpose,” 618 F. Supp., at 1118, and that “[b]ecause plaintiff has considerable problems dealing with staff and peers, the Court cannot say that she would have been elected to partnership if the Policy Board’s decision had not been tainted by sexually based evaluations,” id., at 1120. Hopkins thus failed to meet the requisite standard of proof after a full trial. I would remand the case for entry of judgment in favor of Price Waterhouse.
As of Saturday morning, the author of that is one-eighth of the Supreme Court.
Irrespective of anything that may have happened re: Anthony Kennedy’s judicial philosophy since May 1, 1989 (the date Price Waterhouse v. Hopkins was issued), what would you rather have had as your reward for living through the politics of Jan. 20, 2009 – Jan. 20, 2017?
A concrete statute?
Or a ‘robust’ hope that, if the Price Waterhouse trans emanations make it to the Supreme Court before Scalia’s seat is filled, Anthony Kennedy will side with the four reality-based justices and actually bless us with a majority opinion (that, of course, a subsequent Supreme Court majority could erase – but put that aside for the moment)?
With a conjoined ‘robust’ holding-of-breath that even if Kennedy instead sides with the other surviving three conservatives the resulting non-precedential affirmance-by-an-evenly-divided-court would benefit a trans person who may have prevailed at the court below?
With a further conjoined ‘robust’ holding-of-breath that Obama actually will be allowed to fill the seat?
With even more conjoined holding-of-breath that, if Obama is not allowed to fill the seat, the Democrats won’t subsequently manage to blow the presidential election, thereby letting Marco Rubio give the seat to Rafael “Ted” Cruz (or vice versa)?
You want to rely on all of that roBuStness?
I’d sooner rely on the ghost of Ted Kennedy to be my Uber driver when next I’m in the Chappaquiddick area.
The judicial and administrative decisions and rules that currently emanate from Price Waterhouse v. Hopkins do exist – but only to whatever degree that they exist. If you are in the position of needing to use that precedent, by all means do so. But, (1) don’t be surprised if what you think are ‘robust’ protections instantaneously vanish into a puff of a self-important, obnoxious, untrained-in-the-law, three-time-political-loser, ‘retired’ doctor’s ego when it is least convenient for you; and (2) don’t be surprised if what’s left of those ‘robust’ protections vanish on Jan. 21, 2017 – or whenever the Republican who benefits from this year’s model of inevitable Democratic incompetence fills Scalia’s seat with the christianist who not only wipes out Price Waterhouse v Hopkins but also the Fourteenth Amendment.
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