Wow – a wise decision? Maybe?

Every once in a while, SCOTUS does something which appears to be quite good. However strange and whatever the reason, it is cause to celebrate at least a bit. Too bad they are not more consistent in actually judging honestly and fairly and constitutionally. (Assuming we are right about this decision being “good” – and that it doesn’t have some odd results.)

This latest “good decision” happened recently, according to a report on the Ames v. Ohio Youth Department case. Basically, it is a decision against at least one kind of judicial overreach.

Not only that, but surprisingly, SCOTUS issued a unanimous ruling. (Of course, that is itself a reason to worry about what is going on.)

The Nazgul decided that members of majority groups do not need to meet a higher standard to prove discrimination under Title VII of the Civil Rights Act. Justice Ketanji Brown Jackson, writing for the Court, clarified that employment discrimination protections apply equally to all individuals, regardless of their group status.

If we understand this correctly, it means that you no longer have to be a member of some kind of “privileged” (read, historically disadvantaged) group to be able to enjoy equal rights under the law. Which is contrary to 80 years of court decisions.

Lower courts had applied the “background circumstances” doctrine, which required plaintiffs from majority groups to show that their employer was an “unusual” discriminator—this was rejected by the Supreme Court. (Seven of the twelve circuit courts have come up with this doctrine: it is not written into law or found in the Constitution.) Justice Clarence Thomas criticized such “judge-made doctrines.” He argued that they introduce complexity and distort the law.

He is right, of course – it is yet another example of judges making law: kritarchy. (That is, rule by judges.) It is anathema to liberty, even in the context of a republic. A ruling like this is a positive step towards individual rights and fairness – not lumping people together based on race or color or national origin. That is, a win for personal liberty!

Of course, many of the usual suspects (no doubt including many sitting federal judges) are going to push against this: they believe that removing this doctrine will weaken protections for “marginalized groups.” To put it another way, certain groups of people will not be able to enjoy special privileges. Those who hate American society and ideals will claim that “structural inequalities” will be ignored. It could even serve as a challenge to anti-discrimination laws and how the courts assess the claims.

Now, if only the Nine Nazgul (or at least a majority) could consistently push for legal clarity and for laws to be enforced as written (tempered by juries) and not be shaped by judicial precedent. It is not likely that this actually represents a long-term legal shift. And of course, it does nothing to reduce the power of government at all levels, even if agencies can’t play games of favoritism and benefit certain favored groups of people based on historical wrongs.

A final note: Why do we get worried about unanimous decisions? As with Congress, when there is 100% (or nearly 100%) agreement on something, it usually means that it is a stupid act. The example we here at TPOL like is the old saw about how to determine a committee’s intelligence quotient: take the IQ of the smartest person on the committee and divide that number by the number of members of the group.

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