Nine reasons for cautious optimism about individual liberty

Aristotle's axiom 'one swallow does not make a summer' suggests caution in anticipating large reverberations from a Supreme Court ruling last week. But the court's unanimous affirmation of a principle that is commonsensical but now controversial might indicate its readiness to temper the racialization of American law and governance, to which the court has contributed.
In 2019, Marlean Ames, a heterosexual Ohio woman who had worked in a state agency since 2004, was denied a promotion for a job that went to a lesbian colleague with less experience at the agency and lesser academic credentials. Ames was subsequently demoted to a position involving a 40 percent pay cut, and her prior position was filled by a gay man.
Ames filed a lawsuit saying she was discriminated against, in violation of Title VII of the 1964 Civil Rights Act, because of her sexual orientation. She lost in a district court and in her appeal to the U.S. Court of Appeals for the 6th Circuit, which held that she had not demonstrated 'background circumstances' (not defined, anywhere) to justify her suspicion of discrimination. This demonstration requires, the 6th Circuit said, a member of a majority to show that her employer is 'that unusual employer who discriminates against the majority.'
The court heard this case not to decide the merits of Ames's accusation but to consider her extra burden in making them. In Justice Ketanji Brown Jackson's short (nine-page) opinion for the court, she noted that 'disparate treatment' (discrimination) claims generally rest on 'circumstantial evidence,' but only members of a majority have the additional evidentiary burden of demonstrating 'background circumstances.'
Jackson briskly held that Title VII draws no distinction between majority-group and minority-group plaintiffs. Rather, it concerns unlawfully hiring, discharging or otherwise discriminating against 'any individual' (Jackson's emphasis).
By stipulating protections for every 'individual,' Congress 'left no room for courts to impose special requirements on majority-group plaintiffs alone.' Jackson quoted the court's language in the 1971 Duke Power Co. case: 'discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed' (Jackson's emphasis).
In Duke Power, however, the court greased the nation's slide into laws that recognize, in order to privilege, groups. The court conceded that the company did not intentionally discriminate on the basis of race. It nonetheless was guilty of illegal discrimination because when making promotions it administered an aptitude test that had a 'disparate impact' on groups: 58 percent of White candidates and 6 percent of Black ones passed.
By creating an illegal discrimination of effects, severed from intentions, the court opened a path to racialist thinking and laws. And a racial spoils system based on the theory that disparate social outcomes should be blamed on 'systemic' racism. So, racism will persist until 'the system' — a.k.a., society — is dismantled and reassembled equitably, which might take a while.
Such language — systemic injuries to certain (not all) minority groups — undermines a foundational American premise: that rights (and responsibilities) inhere in individuals. This has helped to create today's simmering stew of grievances: the toxic binary of oppressors and oppressed, grievance groups versus groups aggrieved by being accused of complicity, even if unintentional, in oppression.
Justice Jackson's opinion focused, properly, on the narrow question of what Title VII requires and does not mandate. Justice Clarence Thomas, however, in a 14-page concurrence (joined by Justice Neil M. Gorsuch) deplored 'problems that arise when judges create atextual legal rules and frameworks.'
By now, much constitutional law is 'judge-made': extracted from, not found in, constitutional or statutory texts. Including some doctrines that conservatives rightly applaud, such as the 'major questions' doctrine: Executive agencies should not exercise powers of vast economic and political significance unless Congress has clearly and explicitly authorized this. Other examples: Miranda warnings (by police), the exclusionary rule (excluding illegally seized evidence from trials), the nondelegation doctrine (limiting Congress's ability to delegate to executive agencies essentially legislative powers).
The 'background conditions' requirement for majority plaintiffs is, however, unambiguously discrimination mandated as social policy, implausibly tickled from Title VII language. How will Jackson apply her 'individuals, not groups' reasoning when, soon, the court announces its ruling in a case from Louisiana under the 1965 Voting Rights Act?
The core issue there is: Does a map of six congressional districts, drawn after the 2020 Census, constitute 'vote dilution' that denies a particular group, Black voters, a 'meaningful opportunity' to elect candidates of their choice. No such language is in, or implied by, the Voting Rights Act, or is compatible with the Constitution's guarantee of equal protection of the laws for individuals.

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33 minutes ago

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US attack on Iran creates dividing line in final days of New York mayoral race

NEW YORK — New York City mayoral candidate Zohran Mamdani condemned the United States' bombing campaign in Iran Saturday, while rival Andrew Cuomo raised red flags about the Middle-Eastern country. The split-screen reactions were the latest indication of the diametrically opposed worldviews of the top contenders heading into Tuesday's Democratic primary, in a race that's featured Israeli politics. 'These actions are the result of a political establishment that would rather spend trillions of dollars on weapons than lift millions out of poverty, launch endless wars while silencing calls for peace, and fearmonger about outsiders while billionaires hollow out our democracy from within,' Mamdani — a staunch critic of Israel — posted on X Saturday, shortly after President Donald Trump gave a national address explaining his decision to join in Israel's attack on Iran. After initially declining to answer a question about Iran outside a Brooklyn church Sunday morning, Cuomo later addressed the subject with reporters in Midtown. 'Iran cannot have nuclear capability. That's number one,' he said. 'It's dangerous, not only for the region, it's dangerous internationally. It's dangerous for the United States.' Despite the animus, they two agreed Trump abused his authority by not seeking the authorization of Congress before approving the bombing of three Iranian nuclear sites. 'Donald Trump ran for President promising to end wars, not start new ones,' Mamdani said in his statement. 'Today's unconstitutional military action represents a new, dark chapter in his endless series of betrayals that now threaten to plunge the world deeper into chaos.' Cuomo told reporters Sunday he supported taking out Iran's nuclear facilities, but not Trump's decision to do so unilaterally. 'I don't support the way he did it. I do believe he should have consulted Congress,' Cuomo said. 'I believe this is more of the same: This is Trump saying I don't have to follow the rules.' The former governor also said New Yorkers should get ready for a retaliation from Iran and said he would be on high alert for an attack at an airport, for example. 'Who do you want in charge in that situation?' he asked, suggesting he would be the best candidate to respond. 'Who's handled situations like hurricane Sandy and COVID and terrorist threats? This is not a job for on-the-job training.' Meanwhile, Mayor Eric Adams said he and his team met with NYPD liaisons posted in Middle Eastern countries, including Israel, to discuss the potential fallout of the bombing. The mayor likened the situation to the Russian invasion of Ukraine and said the city was on watch to make sure the conflict did not manifest among the various communities living in the five boroughs with a stake in the fate of the Middle East. 'We will keep New Yorkers updated as we move forward, but at this time there is no one, clear, credible threat,' he said. While voters rank affordability and public safety among their top concerns, the Israel-Hamas war has nevertheless become a flashpoint in the New York City mayoral race. Cuomo readily campaigns against antisemitism, criticizes his opponents who haven't visited Israel and is backed by major Orthodox Jewish leaders. On Sunday, he campaigned in the religious Borough Park section of Brooklyn as GOTV weekend came to a close. A super PAC supporting him has spent millions of dollars going after Mamdani — who would become the city's first Muslim mayor — in ads and mailers, many of which call him antisemitic. Mamdani rejects those claims and says the PAC has engaged in bigotry. Jeff Coltin contributed to this report.