Supremely Surprising?

   

There are moments when I feel I can take a certain pride in our legal system.  These moments become less and less frequent, it's true.  Whether this is the case because I grow increasingly jaded as I grow increasingly older, or there is some other reason, I'm not sure.  But regardless, this sense of pride, currently, is due to the decisions of the U.S. Supreme Court ("the Supremes") in recent cases addressing the efforts of the current version of the executive branch to abolish what's been called DACA, and the question whether disciplining or terminating employees for sexual orientation or gender identity constitutes sex discrimination.

The pride I refer to arises because the decisions represent, I believe, evidence of the fact that judges and lawyers are at least capable of making decisions without regard to politics (broadly defined), in some instances.  That's what renders the decisions surprising, as both cases seethed with political influences and implications. It was easy to assume that the decisions would be made in accordance with the perception of the conservative majority on the court and how it would act.  But that didn't take place.

Instead, the decisions were resoundingly apolitical in the sense that they were based on very basic rules of the interpretation of laws and regulations which have been in existence for quite some time.  We can't speak to the motivations of the Supremes given the rationales employed by the majority.  We can speculate regarding them, of course.  But it remains the case that the decisions are based on commonplace legal reasoning of the kind you can see every day in courts throughout our Great Republic.  

Where the language of a statute or regulation is clear and unambiguous, and the words used are not subject to technical definition or specifically defined, the language is to be interpreted and applied based on its ordinary meaning. There is to be no recourse to legislative history or the supposed beliefs or intentions of the legislators.  

The 1964 Civil Rights Act forbids discrimination in employment based on race, religion, national origin or sex.  It's impossible to rationally claim that disciplining an employee because he/she is homosexual or transgender is not based on "sex" under that word's ordinary definition.  

The laws governing administrative procedure require that a reasoned explanation be given for the termination of a program such as DACA.  None was given.  

There is a certain irony in the fact that the decisions are based on the premise that the law says what it says, and therefore is to be applied based on what it says and not on opinions regarding what it was meant to say or should say.  Conservatives have claimed for years that what are considered liberal court decisions are not based on what the law actually says.  That argument is now made against the application of conservative beliefs regarding what the law was intended to say or should say.

One can delight in noting that some have been hoist with their own petard, and recalling that there are two-edged swords (and I confess to feeling something like delight).  But for me what is significant from the purely legal perspective (I am one of those who think the law is something different from morals) is that these decisions demonstrate that it is not necessarily the case that judges will decide cases based on personal preference or political allegiance.  Sometimes, they won't, suggesting a "higher" allegiance to the law.  In these times, that can be surprising.