How Trump's Judges (and the Federalist Society) are Changing the Law

[McNukes™ #NYCMMWasAHero]

I'm not a "textualist" per se; I'm more concerned with what laws were intended to mean instead of what they literally say. For example, I agree with the Court's conclusion in King v. Burwell (and I don't care one whit about Obamacare, I just care whether or not the Court interpreted that law the way Congress intended). My approach to interpreting laws has been influenced by Judge Learned Hand's essay, "How Far Is A Judge Free In Rendering A Decision?" Hand said a judge should strive to understand what the legislature intended, and assuming that legislatures always mean exactly what they say is quite foolish (those weren't Hand's exact words; I'm paraphrasing him).

So this is a major reason why I won't support Trump's re-election. I voted for Evan McMullin last time, and I'll be searching for someone similar to that next year.

Interesting. What's your take on the recent employment discrimination cases based off lgbt status? I hated the obergfell decision despite agreeing with the outcome,  but as a textualist I totally think the antidiscrimination argument is sound in those cases based purely on the law, as written, notwithstanding the obvious truth that congress in 1965 didn't intend it to cover such persons.

My first instinct is to draw a straight line back to 1964 and ask myself whether Congress intended for "sex" to mean "sexual preference" as well (the terminology used back then), and the answer is pretty "obvious," as you say. But I would have to be fair to the other side and give them a chance to argue that the precedents handed down in the years since 1964 have effectively developed a broader meaning to "sex discrimination." Of course I need to hear both sides before making up my mind and making a final decision. Fifty-five years worth of developing precedents could tilt me away from my first instinct.

I believe that first and foremost, reading the law as originally intended is even more important when it comes to statutory interpretation as a decision affirming that the Civil Rights Act includes sexual orientation discrimination on the basis of its inclusion of protections from discrimination on the basis of sex would also, by nature, strip from Congress the constitutional prerogative to repeal such a provision without repealing discrimination on the basis of sex as well, at least unless every sex discrimination law is built to include non-inclusiveness towards discrimination on the basis of sexual orientation, gender identity, etc.