Does the Supreme Court’s decision in Bostock v. Clayton County, Georgia, forbidding employment discrimination on the basis of sexual orientation, also spell the end to affirmative action?
That may sound like a crazy question. But Justice Neil Gorsuch’s opinion, emphasizing the need to follow the “original public meaning” of legal texts, gives a real boost to opponents of affirmative action. In fact, a passage in that opinion seems as if it was explicitly meant to provide that boost.
Here’s the background. The key provision of Title VII of the Civil Rights Act of 1964 makes it unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
That provision was the governing text in Bostock. It is also the foundation for legal challenges to racial preferences in employment, even if they take the form of voluntary affirmative-action programs. According to those who challenge racial preferences, discrimination is discrimination — period.
...That raises some obvious questions.
First: Why did the four justices usually characterized as liberal — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — join Gorsuch’s opinion? Why didn’t they write separately, questioning his textualism?...
Second: Is affirmative action really in deep jeopardy? If the court is going to rule it out of bounds, it will have to overrule its 1979 decision. Some of the justices might be inclined to think that the decision was wrong at the time, but that precedents deserve respect.
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